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CONFLICT OF I-AWS

ARAULLO Uil!\TER SITY

LAW L'BRARY
CABAI{AI UAN C ITY

ALICIAV. SE LLB., LL.M

of Appeals
Retired Jattie-of the Court

Fortter Astistdat S olitvto*Guera/

Ci4'
FornerJDKC.ldge ol Calooun
For*rr.Tortgr' F(TC o.f Caloocan
Citl'
999 and 2003
BorE*oiiori in GailLzw' 1

Pmfetsor and Bar Reuieuer

in Gai I l-znt
Menbe", Cnp of Ciuil l-av Profesorl
Acatieml ol' the P hilippixu
J adiaal
 PREFACE

Repcatedl'urped and requested br, her srucienrs a.ci bar re'lewe c.

CoPvrrght 200'l
to writc a textbooli in confhct oi Larvs rvhrci.r ther. claim is a difhcull
by subject and that no srmple and handv book rs available to help them
study tire same, the undersrgned finallr, buckled dou,n and .wrote this
"Handbooli on Conflrct of Laws" rn a sunphFred, quesuon-answer form.
ALICIA V. SEMPIO-DIY
gurded bv her long experience for the past nvenn'-five or llore )/ears ln
teaching the slrblect. and emphasizing and explainine with exampies tl-re
TRAULTD LIUIVFRSITY fundamentals and irnportant aspects of the subiect that students and bar.
reviewees seem to Frnd difficult and burdensonre. This irumble rvork rs
LAW I .BRAR T
thus dedrcated to aii the larv srudents takrng the subject this vear and in the
CAEA}IAIUAN C ITY vears to come, as well as the author's tl'rousands of former students whc,
number and are either rcvieu'ing for the bar or are now successfu] l2s,' practiuoner-s. It
Any copy of this book not bearing a
is likewise hoped that larr"'professors teaciring the srrbiect, and larr^u'ers
,ig"","r. .f.he author on this page shall denounced
be
and judges conftontcd with confucts problerns, can find thrs humblc
u. pro.""dt.tg from an illegal source
handbook useful and heipful, especraily as rve do not have enougb laws
nor jurisprudence to guide them in all }lnds of conflicts problems. indeed,
' ti
t"., wrth dre fast advance of modem technology rn dre means of communication
between and arnong tire natrons of the '"vorld, the raprd growth and
expansion of internattonal trade and commerce, the influx of tourists
and foreign traders to out countn as well as the massi\re migration of
our countn'rnen to v,'ork and hve rn forergn shotes, and the great increase
N" /43L in busir.ress uansactions of foreign corporauons rn d-re Philippines. nrore
and more confhcts problems crytng for solutions will undoubtedll'ause.
ALL RIGHTS RESERVED
Bv the Author
The i.nr,aluabie help of her fotmer students Atn. Edr.vard Ong

W'i Pdnted'SY'
and bar reviewees Clarence Evangelista and Russei N'liraflor in encoding
her manuscript and preparing it for prtnung ts herebv gratefullr- and
sincerclv acknorvledged.

MPC Printers
8-F Pahutan St. Veterans Village
ALICIA V. SEMPIO.DIY
Proiect 7, Quezon Ciw
Quezor Ciry
lvlav 2t)04
 TABLE OF CONTENTS
Page
i In General 1

I Junsdrcdon and Choice of La'*' 4

3 Theories that Justi$' the Applicauon of the Foreign Law 1,7
4 Nature and Composition of Conflicts Rules 22
5 Charactenzaaon of Conflicts Rules 26
6 Personal Law - Theories in Determining One's Personal Law 29
7 The Nationaiiq' Theory 33
? g The Domrcrliary Theory 51
9 The Situs or Eclectic Theory 57
10 The Problem of "Renvoi" 59
11 Conflicts Ruies on Starus and Capaciry 65
,).2 Confltcts Rules on Marriage
A. Matriage as a Conffact 74
B. Marriage as a Starus 78
C. Annulment and Declaration of Nulliry of Mariage 83
D. Absolute Divorce 86
E. Legal Separation or Reiative Divorce 90
h
la- 13 Status of Cirrldren
A. Legumacy and Illegrtimacy 94
B.Legrtimauon 97
C. Adoption 98
14 Wilis, Succession. and Administration of the
Estate of Deceased Persons 105
15 Property i13
16 Contracts 122
Contracts
A. Extrinsic Validiq' of 123
B. Capacity of Parties 124
C. Intrinsic Validity of Contracts 725
D. Special l{nds of Contracts 128
17 Torts 13t)
18 Crimes 137
19 Busrness Assooation
A. Corporauons 143
B. Partnerships 149
20 Recognition and Enforcement of Foretgn.Judgments 151
CONFLICT OT LAWS

CHAPTER

IN GENERAL
L"Defrne Conflict of Laws.

It is that part of law rvhich comes inro plav rvhen the issuc
before the court affects some fact, event or transaction that is so clearlr'
connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro that
svstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).

Conflrct of Lau's embraces those universal pnnciples of ngbt

and jusuce whicl'r govern the courts of one state l-raving bcfore tirem
cases involvrng the operation arid et-fect of tl-re iarvs of anotirer state or
coul-rtrv (lr{rnor. Conflict of Las's. 19t)1. p .{).

Conflict of l,aws is that parr r,i the munrcrpal lau, oi zr starc

whtch directs its courts and adnlnistrative agencres, rvhetr confrontecl
with a legal problem rnvolving a foreign element. rvhether or not ther
should apply a foreign law or foretgn lnu's. fParas. Phil. Confhct of Lalvs.
1996 ed.. p. 2).

ZJ\lhat is a Conflict of Laws case?

Anl c^"e which invoh'es facts occuning ur rnore than onc statr'
or nauon, so that in deciding thc case. ir rs neccssan' to make a choicc
berween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s
 CONFLICTOF LAWS
I
IN GENERAL
3. when the rvord
..state" is used in conflict of Laws, what does it
mean?
ir inclucies nor oniy ioreign s()\'cretgn cc-runtrics or states but
al.so poliUcal subdirrtsrons of states oL countrics v'hich l-rave their
ovn legal sYStems, sr-rch as thc differcnt states
constiruting the United States of America, the lederal st^tes of Austfaha,
Canada, lv{ex-tco, llrazil and Germauy, etc
4. $/hy is this subiect more important in recent times than in the
past?
Witir the fast advance of modern tecirnologv in the means of
communicatiou betrveen and among states, the rapid growth and exPansion
of internatronal trade and commerce, the influx of tourists arid f,;reign
traders to our countlv as well as the massive lnregatlon of our countrvmen
to rvorli and live in foreign shores, the great increase of business
transactions of foretgn corPoratiotls n the Philippines, all these bring
about manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitl
nor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studv
this subject as an important department of lar'r,:,
5. Is Conflict of Laws part of International Law?
No. Althougir it is sometirnes tirought of as part of International
Law because of the presence of a foreign elemetrt in a given problem, it
is nor rnternational tn character but is part of the municipai law of each
state. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai or
iocai iaw of each state, since everr' state has its orvn iuterual or loczrl
svstern of lavi so each state also has its own confltct o[ Iaws.
6. What is the reason for the diversitv of conflicts rules among the
diffetent states of the wodd?
Thrs is because each group of peoplc havc a lauguage, cr-rlturc,
mores and customs, rehgron, ideals and bc[etl, pecuiiar to sr,rcl.r group.
rvhich or" r:eflc:ctcd or exprcssed in tl'retr 12rr5 nn6i legal strsterns. For
exalnpie, whilc the great rnajorin' of tlrc countr-ies of tirc rvorlci alkr.'v
absolute ciivorce. our coul-Itr\r sttll has not legalized absolute divorce. Anci
rvhile some counlries a,:e verv liberal in grnntlns drvorces. others are not
so libeml.
CONFLICTOF LAWS IN GENERAT
7. Distinguish Conflict of Laws from Public International Lap'.
(a) As to persons involved: Public Internatronal Law governs
sovereign states and entities that are intemationally rccognized or possessed of
internationai personality, such as the United Nations Organization; while
Conflict of Laws governs private individuats or corporations.
(b) As to nature: Public International Law is intetnationa] rn
character; Confiict of Laws is rnunicipal in character.
(c) As to transactions involved: Public International Law
applies onlv to transactions rn wllich only sovereign states or entitie s with
international personality are concerned and which generally affect public
interest; while Conflict of Laws deals with transactions stlictly pnvate in
nature, in which the countrv as such has genetally no interest.
(d) As to remedies applied: In a dispute between sovereign
states or tnternational entities or in cise of a violauon of Internauonal
Law, the concetned states may fitst resort to peaceful remedies iike
diplomatic negotiations, mediation, inquiry and conciliation, arbitratron,
or judicial settlemeflt b,v international tribunals [ke the United Nations. If
these temedies fail, the states concerned may resort to for:cible remedies
like severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo,
bovcott, non-intercourse, pacific blockades, collective measures under
the UN Charter and finallv. war.
ln Conflict of Laws, recourse is had to ;udicral or admrnistratrve
tribunals in accordance with the rules of procedurc .of the country w'bere
rhey sit.
8. What are the sources of Conflict of Laws?
Direct soutces: Bilateral and multilateral treaties and internatic-,nai
conventions; constitutions; condiltcations and statutes; iudicial decisions;
and internationai customs.
Indirect sources: the samc as other branches of jau': among
otirers, the natural moral laui and the rvritrngs and treatrses of thinkers
and famous writers and jurists on the subiect.
 CONFLICT OIJ LAWS CONFLICT OF LAWS JURISDICTION AND CHOICE OF LAW

clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt,
whrch d-re proceedrngs in cluesuon bclons.

1a)Srnce jr-rrisdicuon over ti're sublect marrer ls conferred bv iau.

lt clnnot be conferred b1' consent oi'tire partres or bv tl'reir voluntart'
submission.

a
(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is found
CHAPTER in the Constitution and the.)udicrary Reorganizauon Act, as arnended
fludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.
Act 7691).

(c) Srnce jr-u'rsdtcuon over the subject-matter exists onlr, rn the

JURISDICTION AND CHOICE OF LAW
1.. How does one deal with a problem in Conflict of Larvs?
(a) First. deternine rvhethcl thc courr i-ras jruisdrction ovcr thc
clse. lf it has no iulrsdrctron, thc case sl.rould be drsrnisscd on tirat t:round.
Ii it l"ras jurisdictron. tllc court rvill cle tcrrninc t.hether it should assume
jLrrisdjction o\rer the case or clismiss it on thc ground of .ionrru nln L'ot'tzj(nian.t.
OF course. 1t is thc lat, of thc forunr that cietcrmines rvhctircr thc court
bas juflsdicUon ol'1lot ovcr thc casc.
(b) Once the coult has dctcrmined rvhethcr it has jurisdrcrion
()vcr tire case. itrvili next determine rvhethcr to a1>plv tl-rc internal lal,
<,,f the folurn or the proper forejsn lau', considering thc atrencianr
c1f cumstances.
abstract. rt mlrst bc invoked bl Frlir-rg the proper cornplaint or peduon
wlth thc court. And it is dre illegauons of the complaint or peutron read
in the hgirt of tl-re proper jurisdrctional laq that confer jr-rrisdtctroll on the
colrrt. lf the allegations of tl-re complaint show prinu.fttsic a lack of
jurisdiction, tirc cor-rrt must disnliss thc case outtigl.rt. Ntr prchrninalr'
irearing on ti.re cvidence is needed. Il, on tl'rc other hand. thc complatnt or
pctitioll. on rts f-ace , sirrxvs the l)rcscncc oI jLrrisdicti<;n, tria] must bc held.
Should thc cvidcnce shorv that tirc coult rcaiiv has no junsciicti<,rr-r, thc case
rnust bc dismrsscr-|.
ln thc reaim o[ Conflrct of ],arvs, horvevcr. there is anothcr
(d)
eicrnenr whrch the coult mLrst consider in detcrmining the mattcr ()f
lurisdrcuotr;1.e.. the possrble eniorceabilin'of rts clecrsion in loreigr ,ror../
sublect to thc riqhts oi said statcs (sec lticnu'tck, lntcrlratronal J-arv [1948].
p 312) 'l-hrs rs bcc;Lr.rsc rr (-onfiict
t-ri Llrvs. lunsdrction is thc porvcr of
tirc court oi thc t() rcnclcr a dccrsron thar ri'ill cteatc lcual r:ights
ii-rrr-rm
and intcrests rvi'rrch otircl statcs will rccognrze and cniorcc-

2. Ho*' does the court determine whether it has jurisdiction over

the case?
Jurisdiction over the Person;

()r powcr of r
-lurisdrcuon over thc pers()1r is the competencc
(a)
T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thc
c()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thc
sublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction ovel
piantrff or pctitloncr, ancl thc dcfcndant or respondent.
tlrc t'es
f\e- '^
ccu''r\,n:l* (b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht'
-
Jurisdiction over the srrbiect-matrer.. ^ rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct'
picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs hts
lurisdicuon orrcr tirc subjccr-rnattcr is conferrcci lrl larl arrd is
lul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht
 CONFLICT OF LAWS
JURISDICTION AND CHOICE OF LAW
court ol'er hlm.
A piantrfi. uncler tire rule oi subtntsston' mat somettmes b\'
fiirng surt v'ith t-ire couft be deemed tu conscrlt t() lts e\e;clse of iunsdrcuon
over his ort€alnal cause oi acgon including counter-clarms irled br- the
defendant, and lle wouid tiren be subject r() tilc iudglrlent of the court.
As for the defendant, his personal appearar.rcc ()1. appcirrancc bv couusel
is tantamount to his giving consent tt; the c()urt's exetclse of iurisdrctron
over his person, except if his appezrance of ri'rat of counsel is for tire solc
putpose of cluesuoning tire jurisdrctron o[ the court
over the defendant rrrav be acqurred througlr hrs
(c) Jurisdrcuon
voiuntarv appearance, as already stated. of bv personal or substlfuted
scrvice of summons on him ulldef the Rules of Court. This is referred to
as tire coefciye pr()cess in tire rnnnler pr<.,r'ided bt, Iaui
Personal setvice: "Sec. 6. Servlcc in person oll defendant -
Whenever pracdcable, tire summons shall bc served bt'handing a coP)'
thcreof tc_r tirc defendant in person. or, if l.re refuses to receive and sign
for it, bY tendering it to him." (l{uie 14, 1997 Rr"ries on civil Procedute)
substituted service; "Scc. 7. Substrtuted servicc.- If, for justifiable
causes, the dcfendant cannot be serve{ rvidtn lr rcasonablc tune as providecl
in thc prcce<ling section, servtce mal' be e ifccted (a) bv lcaving copies of
the summons at tire <-leFendant's residence with some pefson of suitable
agc and drscreuon then residing therein' or t'b) bv leaving the copies at
clefenclant's ofltcc or rcgLtlar placc of busttless wtth some c()l'tlPetent
persorl ln ch^rge thereof." (id.)
Stflct cornpliance wlrh rllr ab,.)r,c nrles is requirc<j bef<-rrc thc
c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon
u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus'
servlce
on a \2-year old daughter of the defendarrt is not vahd substituted
se rvice because of tire child\ lack of suitable age and drscretion
(Sequitrt u.
Itlrondo,,/). Howcver. tite quesuon t>f cr(>ncous scrvtce of summous
tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc
r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice
rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if in
anY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comt
to iris attenuon (Sequito u Lttrondtt, id )
CONFLICTOTLAWS JURISDICTION AND CHOICE OF LAW
Jurisdiction over the Res:
-lurisdictron over the re.i or thing is jurisdrctron over the
particular subject-matter in controversr', regardless of tl-re persons
who mav be rnterested therein. The basrs of the exercisc of this jurisdiction
is the presence of the propertv wthrn the territorial iurisdicuon of the
forum, even though the court rlav not have personal iurisdicuon over the
persons whose interests in the properw are affected. This is because the
purpose of the suit is not to impose a personal habiiiw on anvone but it
is to affect the interests of ail persons rn a thing. Lxamples are land
reglstration cases and adrniralW cases where the purpose is for the judgment
to bind the whole wodd insofar as the subject land or vessel is concerned
and not just the interests of specific persons. This llnd of jurisdicuon is
referred to as jurisdiction in rezz, as distinguished from jurrsdrction iz
petonam whtch binds onlv the parues and their succcssc.,rs-in-interest.
What about acuons quai in rcrn? In an action qua.ri iu rem, tlte
purpose is neither to rlTrpose a persoull habi.hn or obhgation uP()n
^nvot]e,
nor to affect the interests ol aii persons in a thrng, but to affcct the
interests of particular persons in a thing. In sucl.r case, the court mav
render vatd judggnent when it has iurisdiction over tl-re particular persons
whose interests are affected. Examples are foreclosltre of a mortgage,
partition of land, or an acuon to qutet tide to propern'. An actron affecting
the personal status ofthe plarnuffrs aiso classiFred as an acdon quati in rem
under Ruie 14. sec. 1 5 of the 1 997 lluies on Civil Procedure. ln actions zz
tem. act:tons quLtti in rem, or'those involving the personal statr'ls of the
plaintifl exlraterritorial service of summous bv pul>llcatron is all<;wecl.
3. How may service of summons be effected?
ln acdons ifi psfflnam, scrvice oi
summons mat bc bt llcrsonal
service or subsututed service, as pornted out above. Sen'ice bv publication
would not be sufficient, whether the defendant is in tl.rc i)hilippincs or not
(Pantaleon u. Arundon. 105 Phil 75/).
When, then. is setvice by publication allorved? Summons br
pubhcation is authorizcd onit'iu thrce cases:
(a) lf the acrt<>n ts in ran;
(b) if dre acuon rs quati in rum. or
statr-rs of the plarntifi
(c) It tl-re action involves thc Pcrsonal
'(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i
 CONFLICT OT LAWS
IURISDICTION AND CHOICE OF LAW
When rr-ral extraterritorial service oi sumrnous be effecteci-:
Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortai
servlce of sumtlons tnat bc mircie: llamci\':
(a) \\hen the dcttnciant does not reside and is not found in tl're
Phihppines. and the action affects the personal status of tire
plarn u ff:
(b) \lhen the defendant does not reside and is not found rn the
Phihppines, and the actlon relatcs to or thc sr-rblect of wirich
is, propern'wrthrn the l)luhppmes treal or pcrsonal). rn which
the defendant has a claim a hen or interest, actual or contingent;
(c) When the defendant is a non-resident but the subject of the
action rs properry located in the Philippines, in whtch tire
reiief demanded consists. whollv or in patt. rn exciudtng tl-re
defendant from any interest therein; and
(d) \X'hcn propertv of a non-resident defer.rdant has been
attached n thc Phiiipprnes.
tl're last case, hower.cr, u4riie a l'rit of attachment
In
rnav be rssr-red by the court upon apphcatron, sard v'rit cannot be
lmplemented untll the court iras accluired jurisdictron over thc
non-residcr-rt defendant, for urithout such jurisdtctron, the court
has no porver ancl allthoriq' to acr 111 any manlrcr against the
defendar-rt, and an1' court order to that effect rvill nor bind sard
defendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|)
lteel )
Hov, mav extraterritorial service be effected?
Such serrice ma},, by leave of court, bc effecred:
(a) By personal selvice as under sec. 6, Rule i.l;
(b) Bv publicatron. but copv oi the summons and the order of
the court must be senr bv registered rnail to the dcfcndant's
last known address:
(d) Irt anv other manner that dre court mav deem sufficient. Irbr
example. bv rcgistered mail
(,N\idge4' t FernandeT. 61 SCK'1 23).
4. Illustrative cases on the problem of jurisdiction:
(a) Mar, a Fiirpino permanenr residenr of Cahiornia. USA, carne
CONFLICTOFLAWS
AND CHOICE Or LAW
'URISDICTION
to the PhiJ-ippines on vacation. while here, he had an affak w,rth and
impregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsi
availabie piane to the L'.S. rf, after the birth of het child, Rose fiies an
action against Mar, who happens to have some properties in the
Philippines, for. recogmuon of her child with supporq would the action
prosper, summons having been served on Mar only by publication,
As to the recogninon of ltose,.s bab1,, ves, beca.se that is an
acrion that affects the srarus of the child. so tirat sumrions bv publicauon
would be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc.
15, llule L1, 1997 Rules on Crvil Procedure).
But the clernand for sr-rpport of thc child agairst l'lar will not
prosper, because it would be a judgmcnt tr puronant, ancl surnmons b.'
pubhcation wouid not give the court jur-iscliction over Mar.
(b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippines
while on a short vacauo'l here,
'"itir.nr re'ealing to susan tl-rat he rs
alreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence.
Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of their
rnatriage and damages, as Joe happe's to h^r,e some properties herc.
Upon the hli^g of her petitro', S'san also asked the court for a v"'rit of
prelir-ninarv attacl-rmenr against some of Joe's properties in this countr\..
would susan's acuon lor declaration of nul[tv and damages against.]oe
prosper, sumfi)ons having been served on thc larfer bv puithcation?
For the declarauon of nullirv oi marriage, \,cs. because that aslis
for a declaration of the personal statrs of Susan, equrvalent to an action
cluasi in rem.
But as to the demand for damages rvith a rvrit of prcliminan.
attacirment, it was held in the recent case of Dauao I ght and power Co.,
Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bc
implemented unul the court has accprired jurisdrction ovcr the non-
resident defendant, which can be done onlv bv personal or subsuruted
service of summons on the latter, because a judgment for damages is a
iudgment in pertonam.
(c) X. credrtor of Y (a residenr of Spain), filed an acrion agarnst
Y for tire foreclosure of mortgage over a propern- given to hrm br, \' as
securin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tirc
Pirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc
10 IURISDICTION AND CHOICE OF LAW CONFLICT OF LAWS CONFLICT OF LAWS
IURISDICTION AND CHOICE OF LAW 1I

thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r, plai.tiff r-rrgirt h^'e trled the casc rn thc
ir.rlur_' meleh. rc,
sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\,
or ltrrrass the
.lt'icntirrr::
As to foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuon
tl-re r'e)'firc forura iras Do lraLuctrlar inrcrcst t. tirc casc,
thc paruc:;
quai in rem.Butas to the detnand for deficiencv judgrnent. no. because it not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre;
or
rs asking for a iudgment in pcnonum agarnst Y the subject-rnr -ter of trrc casc ertolvecl s.mervhere
elsel
(f) other collrts are ope' and trrc case rra'rre better
triecr said
5. Mention othet points to remember on the matter of iurisdiction: ceLtrtsl '
'I'he rnadcc|.ra., of trre local j*drcial
ft) maci''c^. for effccrr_rafi'.,
o
(a) Once the plainuff hies an action before a Pirilippine court, thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot
wl.retl'rer he be a Fihpirro ciuzen or a foreigner, a resident or non-resident (h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc.
of the Philrppines, he submits hrmself to the iurisdictlon of the court afld (See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3
Co.
puts the iudrcialmachinerv into actron. Flence, he is now subiect to anv t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..
counterciaims, cross-clatms, etc' that the defendant nlal' Put up under 15 l;ct/. (2(/)#q
Philipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcd
the entire judiciai machiuery of ti.re forurn completeil', so that he must Example: Several Gcrm^n crtize's brought rnsurarcc craims
accept not onlv tts benefits but its burdens as well. against the Nerv \brii Life lrs. cr. .' insnralrcc policies issrecl in
Gerrnanr. -\lthougb the plarntifir- were citizcns and resrdc'rs.f
(b) As for the defendant, he becomes subiect to the court''s iunsdicuon Germanv and wrs a Ne*'\brk CorPoration, suit was brought
de fendar.rr

as to all subsecluent matters in the same suit, like appeals. And even if he in oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.
leaves the state o[ dre forum prior to tl-re final clcterminatiotr c.'f tire v"'as se-rved.
actron agarnst hrrn, jlrrisdiction of the court over him contintles.
Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion.
6: Explain why the court may refuse to exercise jurisdiction over a refusc to taiic cognizance of tlic casc?
case on the basis of the principle of forum non conveniens.
Held: Yes, on the groun c1 of .1orum noft LankntcttL.e becar-rse:
As has been said before, even tf the court has jr"rnsdictioll over a (a) Bodr parrics werc non-rcsidcrrtsof the forum;
confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni. (b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl
rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi the iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant
following practical reasons: crrirer jru'isdrcuon; 'r
(.) 'lb requirc dcfencia'r ro clcfe'cl the acti.n in tl.rc forun rv.ulcl
(a) The evidence and the witncsses m2l'not be readtil avarlabie in in'rpo"^e upon it great and unnecessar-t.lnconvcrlencc ancl compcl
the forum; it to produce records and papers whicir rverc of daill usc in
(b) The court dockets of tl.rc forum ma1' alreaclt be clogged s<r its current business;
that to pennit additional cases iran-rper the speedr' (d) 'fhe case could consume months of ti.re rirne of rhc cr>urr.
"vouid
administrauon of iustice; resultiug rri dclay, inconvcnience, ancl expense t() ()the r
(c) The belief that the matter can bc better uied and decided rn Lrrgants rvho are entitlecl to involie thc coult's jurisdiction.
another iurisdiction, either bccause the main aspccts of the (.Hcint r. \n,)brk )t,;. Co.. supr.ti)
case transpircd there or the rnaterial wrtnesses have their
residence therel Warning: Itemernbcr, however, that the doctrinc shoulci
(d) To curb the evils o[ "forum si-ropping";1.e., the non-resident generalh' appll onlv if the defendant is a corporation. lior if ti.rc
72 IUIIT'DICTION AND CHOICE OF L,AW CONFLICI OF LAWS CONFLICT OF LA}^'s JURISDICTJON AND CHOICE OF LA}\' I.1

clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc -This rs the sec'nd case rvhercrn the rntel'ai .r clor",-,e sdc iau, .i
ir-rnschctron over httl ifor examplc. )'rc rlugirt not bc'resicirue t)-rerc'). thus tire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper foreig. iau
leavrng tlrc piarnufi *'itirciut anl rencdt iJttnt.trtti, .w.bn':. has not bee' properlv pleaded and proved. 'rirc reason i, thnt ,r,r.
courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droper
7. After the court has acquired jurisdiction over n conflicts case forcign lau'is pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ct
and has decided to assume that jurisdiction, u'hen is it bound to
'ot
or an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrr
aPPlv the internal or domestic la'w (lex fotr)? bas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thc
internal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v tht
Tl-rere are at lexst three (3) instance s rvl.rerr tire forr'un has to appil latter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6
tl'rc inter nal or dorncsltc lnxv (lex fo..ilrn clcciding a casc in conflicts of lau', Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra
t,i:,, 'l-ettate I'-stutt ol Suntql, 95 P/ti/. 500).

(a) \\hen the larv of the f<-lrtul exptcssh'so provides tn rts (a) In connection with the foregoing quesrion, lror:r.. is a
conflicts rulcs; foteign law proved under our Rules of Court?
(b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded
ancl proved: If rhc larv is written ir r-nat' be proved b1':
(c) \\,hen thc casc invoh'es anl of the exccptions to tire application
of the ploper torctgn 1211'; ii.c.. e\ccptions t,-r courttt-). (1) ,\n official pubhcation rher'cof. or
(2) A copv ofthe larv attestcd bl thc otttcer har-ing iegrl
8. Give examples of cases rx'hich require the application of custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccl
Philippine internal or domestic law' (lex for\. lrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.
or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jc
(a) \lhencver lencl involved itr+ire suit rs locatecl rn thc I)hilrpptnes, the recc-ird is kcpt, and auther.rticatecl bl rhc scal oi
Philrp1;rne iarr'ol thc lc.>: silu.t rs apphcd (.\rt i 6. titst par., New his offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)
eivrl (-,rdc.,
(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() of li tl-re las' is rrnu'ritten. it nlav bc 1>rovccl l-ly:
tirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarl
stipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs of (1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir'
the spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcss (2) B,v printccl atrcl publishcd boolis of rcpor,:s rif
oi thc placc of thc cclcll-ation of thc tnirrriagc anci their dccisions of the c<-lur-rnf inr,oived, if provcrl to bc
rcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls. commt.rnll aclmittcd ir.r irs ccurrs. (RLrle 1 3(), scc. -15,
(c) \X/ircn r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtnc rd)
such utrdcl thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be
soverncd bv Philpprnc lar'" (scc. par:., -\rt. 1(r, Ne*' (,ivil (b) What is meant bv the "proccssual" presumption of lar.v?
Cr>de).
(d) if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\', This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hes
the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippine noI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr'
iarv (-\rt. El9. Nc*' Civil (-,rcic). Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oi
clomcstic lat', rl'iricir it cen norv apnlr',
9. Explain rvhv the foreign lau' cannot be applied if it has not
becrr pleaded and proved. 10. How is a foreign larv that has been duly pleaded and pnn'ed to
.11 IURISDICTION AND CIIOICE OF LAI\ CONFI,ICT OF LAWS
CONFLICT OF I,AIVS JURISDICTTON AND CHOICE O}. LAW 15

be interpreted bv our courts? xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc'
ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da,
,'\s a gencral ruie. a folergn lx\\,tirnr hls bccn duiv plcadecl lnci torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.
trallsacttons thitt tnirtngc goi-rcl
ntoralrn' ^rl
plor.ed should irc ql'en bv tire sarnc intcrprctatlon as thai
or-rr cr)ur:ts .,r.r,j"rat',rod br. th.
^r
forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.
qtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.

A possibie excep[on is a casc t4rcte sotnes.hcre in our lav"'s, (c) When the foreign law involves procedural matters
thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courts
'fhere no.r'cstccl nqircs ur n_rlcs of procedurc; hcncc. a
cannot bc blamecl if thev disregarci thc forcign inter:pretation oi sard ar-e

tbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv our paf n'to au action n-rrrst submrt himsclf to drc proceciural fcrrnra.htres
coufts. of the fon-rm. e\cept rvhc:n the lau' is both procedural ancl
substantn'c, hlic the rules on prescliptlon. and thc Statutc of
lL. When a case involves any of the exceptions to the application l;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. an
of a foreign law-, the rulc is that the foreign law cannot be applied American cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcr
and the courts should instead applv the domestic or local lau'. can he insist in the applicatron oi Amcrican procedural lau,s in a
Wltat are these exceptions? case in the Phihpprncs rvlrcrc' irc is a parq'.

(a) When the application of the foreign law would run
counter to a sound and established public policy of the forurn.
Examples:
(l) \\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a
foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however.
tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the latter
vaiidir. obtans a divolce abroad capacitating him or her
to femattl'. the Filipino spouse can also marrtr again (-1f t.
26. scc. par.. Famtlt Coclc).
(2) exccutcd br. Fiirprnr,s iocaih' ol lr a forcign
-\ ioint t'ili
countrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).
(3) Incestuous marnagcs r.urcicr fhc Ijanrih'Codc and those
considered vord bv tl-rc Codc br reas<>n oIpublic policl.
are nuil and r-oid. even if thel lre val-id ir-r other counuies
(Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisions
applv onlv to Filipinos.
to the citizens or residents nf the forum:
(b) When the foreign law is contrary to the almost universallr.
conceded principles of moralitv (contra bonos mores):
(d) When the foreign law is penal in characrer:
Crimes committed in foreign countries are violations
ofpenal laws ofthose counfties and cannot be prosecuted here.
especially as we follow the pdnciple of territoriality in crirninal
law:
,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\.,
horvever, bc enforccd lrcre bccansc such clausc is not crirrinai in
natute bur onh,' provicies for hcpridrtccl dan'rages.
(e) When thc law is purelv fiscal (i.e., revenue-producing)
or administrative in llature:
\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)r-
administrative lau's. \\'e are llot conccrne cl rvith thc collccrion
oI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcr
governmt'ntal functrons or m;lttcrs.
(f) When the foreign law might work undeniable injustice
I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,

Examples: Forergn iarvs recognizing prostitutron;

16 ]uRrsDICTrON AND CHOTCE OF LAW CONFLICT OF LAWS CONFLICT OF LAWS

cltizens or rcsidents of our countrv sirouid not be eniorced or

Even effect irere. An exalrlple rs a foreign iaw purung tire age
of n-rajorin'at 21 ancl refusrng ro recr)gnlze conuacrs of fji]rprros
abroad u4ro are abor.e 18 bur beiou'21. consicicnng tirat rhc age
of majonn- in our cour-rtn is 18.

(g) When the application of the fbreign law would endanger

the vital interests of the State:

The natronal interests and secur.itv of our countfi' should

not be jeopardized by forergn larvs, nor sirould rve enfl.rrce
ioretgn laws that undermrne oLlr govcrnmental Drocesscs.

(h) When the case involves real or personal propertv

located in our countrv.
THEORIES THAT JUSTIFY THE
APPLICATION OF THE FOREIGN I.AW
Remember that we apply tlie hx ita.r or lex rei ilac to all
properties, witether real o-r personal, iound or locateci in the 1.What are the theories that iustift rhe court, in a conflicts case,
Philippines (first par.. Art. 16. Nerv Civil Code). to apply the foreign law instead o[ its own domestic or internal
law?

Sonre o[ the traditional thcorics in cleciding rvhethcr to apply the

local or domestic larv or the foreign iarv ur a conflicts casc are thc follorvurg:

(a) Thc theorv oi comin'

S) The vestcd-right theorl,
(c) The theorv of local larr'
(d) The theon'of harmonl of larvs
(e) The theon' of justice.

2. Please explain each theorv.

(a) The tlreorv of comin'

t\ccording to thls tlrcor\'. no iorcign iau' rvor-rld be al-

lot'ed to opcratc rn anolhcr st:lte e\cept br "the comih' r-,f nn-
trons"; r-e- thc leci;lrocal crlLlrtcsf s,irrcir thc rucmbcrs ol thc
farnih' of nau()ns o\\re tr) one anothcl. Irr thc old casc oi I li/tun t'.
Guyol. t\e Li.S. Suprcme Cr-rur:t deil.rcd "comtn'" as iollon's:
THEOI{IES THAT JUSTIFYTHE CONFLICT OF LAWS
APPLICATION OF TI{[ FORETGN LAI'\
"Cornirr. in thc lcgal sense. is neither: a fitatter
oi absohrtc obligatron. on the r>nc irancl. nor of mere
courtcst anci goocirvili. r-rpor-r tire othcr. But it is thc
l'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\.
ro the legisiarrve, execuuve. or judrcrai acts of anothcr
narlon, having due regard both to international dr-rfi'and
convcnience, and to the rights of its orvr-r citizens, or of
otirer persons rvho are undcl the protecdon of its larvs."
(1se u.s. 113 [18es])
In the above firench citrzen sued an American in
case, a
a French court..luclgmcn! was rcnder:ecl in favor of thc plarnuff
Frcnch. rvho latcr Frled an i1r an ,\r-nerican c()Lut to cnforcc
^ction
thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r the
Frcnch court \\?s latr and rmpartial br-rt even in such a casc, I irench
rribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thcl
still revict'tirc latter's clccrsions on the merits; i.e., thcv arc
regarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience,
the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrench
decisior-rs or-r "the pnncrplc c,,f reciprocitr''.
Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppeals
crf lierv Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot.
ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen for
rvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendant
sct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded ur
his lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irench
coLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-r
dccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lower
court. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcrican
rviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hc
could not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplc
of comrq', t'hich grves conclusiveness to the Frcnch decisrcxr and
bars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basis
o[ corlitv rvas srared as the persuasiveness of the foteign
judgment. not the princrple of reciprocin- as held rn the old
I Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ).
]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl)
J'irus, nvo pflnclples havc bcen given upon rvhiclr the
thcon'of courin: rests: the comitv bxsed on reciprociq, and the
CONFLICT OF LAIVS THEORIESTHATJUSTIFYTHE 19
APPLICATION OF THE FOREIGN LAN'
comitv based on the persuasiveness of a foreign judgment.
Note: In our 1997 Rules or-r Cir.il llroceclr.ue.
u'c still follou' tire plurcinle of recipr6crrr. hclj rn tire
oici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire
"ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgm
final jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of a
right as benvecn the parues and dreir successors in rntercst
bl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidence
of a rvant of jurisdicuon! want of nouce to the par:q',
collusion, fraud, or clear mrstake oF law or Fact".
(b) The vested-rights theorl
Llncler tl'ris theorl', our courts enforce not tite forcign
larv ot foreign judgn-rent but thc right or rights ti-rat have bccn
vested uncler such 1a\\ or iudgmenr. Rigirts once accluired undcr
a foteign larv or juclgment slror.rld l>e enfolccd rcgardicss of
rvhere tire suit for its enlorccrlcnt rvas filcd, 'l'l-rus. tl-re ideal of
uniformin'and predictabiln,of results rvould be achreved. II a
foreign lau'givcs a person a rrght, the mert: fact that thc larv ol
the forr-un does r-rot gn'e hinr l similar or the same right is n<r
reason to refuse to help hir-n get what bclonEs ro hrr"n. J'l'rc
cxcepilon is, iI the forcrgn larv is against thc pubhc pol-icv of tl.re
fonrm. It is a pnncrple oi cvcn' civihzcd larv that vestec{ nghts
should bc plore ctcd. 'fhis prir-rcrplc dso discor-u:ases frrrum-shoppino
An exarnple of dre applicauor.r of dr-rs drcon'rs tl, c Amcncarr
case of Grai't Cra1.8z-Ar.1-l. 82 (1 9)-+).In this case, N,Irs. Gral
filed an actior-r in Nerv lJarnpshire fol
damaqes against l.rcr
hnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have been
caused to her bv the Iattcl rvhile drivrng fron.r their home in Nes'
Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc,
the spouses are barrcLl florr rnrirrrrining an ;rcuon against cach
-fhere
other. is no sr-rch prohibitron in Ncu' I lampshire.
f'he ,\mericarr court mled tn the al>ovc cxsc that forcisn
torts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nght
I-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'i
its existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia t'. ]Ltintttt^,.
71 X.11. 118: lht3u. Jarria,6, \.\. 21;L"ouik.i r'. .\'ranciard Oi,' (a.
ol lt,cw \-ork. 225 N.1. 148)
 THEORIES THAT JUSTIFYTHE CONFLICT OF LAWS CONFLICT OF LAWS THEORIESTHAT'USTIFYTHE 21
l0
APPLICATION OF THE FOREIGN LAW APPLICATTON OF THE FOREIGN LAW

(c) The theorl- of local lau' 3. There being manv theories as to the proper choice of law that
should be applied in each particular case, what, then, should be
Tl're adirerentsof tiris thcon' beijeve tilnt ve rppil a considered the right theorv?
forergn lau.'not because it rs iorergn, but because our ou.'n iau'
bv appiving a srmilar rule requires us to do so; hcnce. it is as if tirc In the v'ords oi tire late Jusuce Edgardo L. Paras:
foreign }aw has become par:t oi our o\\n internal or domesuc
law "It rvill be observed that thc theories hereinabove
adverted ro do not rnutuall1' exclude onc another; perhaps,
A good example of this theorv is Art. 16. par. 2, Neu' the uuth rnav be found in their ccmbinltron. Certain\., it tire
Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re wolld ls to progress in uoderstanding and judgment, it must
deceased in the mattet of his testate or llttcstate succession lf recognrze this rmperative postulate: tirat sorneumes, we have ro
the deceased rvas a Chinese aithough thc children are alreacll' apply the proper forergn law because courtesv. conveniencc, and
Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it is internationai dury so demandl because there are vested rights rve
the appropnate foreign lav; but because our o\\'11 Crvil Code cannot conceivably ignorel because a1i too often, tl.re foreign law
tells us to do so. has become part and parcel of our law; because idenucal sinrations
should be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;
(d) The theory of harmony of laws and fir-rall1, because to do otherr.vise mav ultimatelv result rn thc
negatlon o[ justrce." (Paras, id., p 73)
Undcr this theorl', tdentical or stmilar problems should
be given identical or smilxr solutious, thr.rs resulting in harmonv Liliclvisc, fonncr Scnator Salonga states thus:
of laws. Certaintr,- of soiutions to titc same or srmtlar problems
are of particular rmportance in areas where tl-re Pirrties are hkeh'
"r x x in the absencr t l an apphcable prt;visron in the
to think ur advance of the leeal coltsequences of therr transactiolls. code or statute, the various theorics shouid be examined and
For example, transactions invoiving tcal properti' should be weighed as thev bear on a given conflicts problerrr. No single
governed bv thc /ex iht.s,in the intercst of certaintv and uniformin' theon' contains the whole truth, no one approach is completelv
of result. Srn-riiarlr., a pers<.,n'.s civil stltus must bc governed bl a vahd. .\s one author puts it:
singie lau, for thc sake oi ccrt^inn'; e.g.. u'hcthcr a pcrson is
sinqle or marricd. The apphcauon oi tl-re samc t)r sl-nilat solttuon ' The policies behind all o[ the theones have
also ptevents the bad pracdce oF forurn-sho1'rpirlg vahdin. This suggests that thcy are not entirelv exclusive.
lndeed, there mav be a gain in using different theories at
(e) The theorv of justice different places to make morc rcadilv apparent the
change in pohcres deemed dominant as the situations
Sincc thc puryose oiall law's. includlng (,onfhct oil-arvs. vAf \.."'

is the dispensation of justrcc. the propcr forcigt-r larv shou]d bc

'I'hc de fect of this theolv, (Salonga, Ptivate International l-au',
applied in c>rder t() attain this objcctive.
hovever, rs that different pcrsons tnat'' havc c{ifierent idcas of 1995 ed., pp. 9a-95)
wirat is jusc Should we, then. lc;we tirc questlorl to t}.re diFfercnt
notions oI iairness and iustrce?
 CONFLICT OF LAWS
CONFLICT OF LAWS NATURE AND COMPOSITION 23

r22 2. What are the two kinds of conflicts

OF CONFLICTS OF RULES

rules?
Thev are:

G) Tire one-sided rule (wirrcir indrcates when philipprne

Iaw will appl1').

Examples:

An. i5, New Crvil Code: Laws relaung to famrll,

nghts and duties, or to the status, condition, and
legal capaciry ofpersons, are binding upon citrzens
of the Philippines, even though livrng abroad.
Art. 818, id.: Two ot more persons cannot make
a will jorntly, or in dre same instrument, erther for
NATURE AND COMPOSITION their reciprocal benefit or for the beneht of a thrrd
, OF CONFLICTS RULES pefson.

Note: The above provisions of lav' appll only

1.Distinguish a purelv internal provision of law from a conflicts
to Fihprnos.
rule or a provision in conflict of laws.
(b) The all-sided or multilateral rule; (which indrcates
A purelv internal pror,'ision of lau' governs a dourestic problem;
whether to applv the local law or tire proper
i.e., one without a foreign elerncnt. And it authorizes, commands, or
foreign law).
ptohibits a certain act or modc of conduct. Ihe qucstron taised - whether
the partrcuiar act or mode of couduct is allowed. cornmanded, or
Examples:
prol-ibited - is imrnediatelv solved.
Art par, Neu'Civd Code: Reai properry
16, fu'st
as well personal propern is.subiect to the lau' of
as
On the other hand, a conflicts rule or pr<>r-ision of lav' is a
the countrv where it is siruated.
provision found in olrr own law rvhtch lt()verns a tactual situation
Art. 17, Ftst par.. rd.;'fhe foms and solemnitres
possesscd of a forcign element. It is usuallv expressed in the form of an
of contracts, wills, and other pr-rbhc instruments shall
abstract proposition that a given legal cluestron is "governed" bv the "lau'
be gc.rverned bv tl-re iaws of the counuy m which
o[ a pardcular country" (rvhich rnal be an internal 1aw- or the proper
thev are executed.
foreign law). to be ascertained in the manner rndicated bv the provision.

Note: The above provrsions tell us when to

Example of an internal rule: Art. 796. All persons v,{ro are
appll Philippine larv or the proper foretgn la.ri
not expresshr prohibited bv law mal tnake a will. QNew Civil Code)
In tl.re first exampic. Phrhppine lau,is applied rf
Example of a conflicts rule: Art. 16, Reai proPernr as wcll as
personai propert| is subject to thc larv of thc countrv u,hcre it is situated
the properq'is found rn the Philippines. Ii it is found in
a lorergn countrt:, likc apan, japanese iaw apphes.
(Art. 16, 1" par. . rd.). f

in tire second exan-rple, ii the contract was

 CONFLICT OF LAWS NATURE AND COMPOSITION
NATURE AND COMPOSII'ION 25
OF CONFLICTS OF RULES
OF CONFLICTS OF RULES

c-\ccr-lred in the Phihpprtlcs, rts form ancl soiernnlucs aLc

gor.crned bt Phihpprnc latr Jf rt \r'rs e\ecurc.l rn r
forersn countrt sav rn l'-ngland. E,ngLslr iau' u'ili appir'.
Observation: \\,'hiic,\rt. 15 of thc Neu'Civil
Codc irtcrally apphes onll to lrihprnos and is actuallv a
one-sidcd rule. tirc Suprcmc (-,ourt iras gir.cn it a rnulti-
iateral apphcation rn that it has l-reld that t<-rrcigncrs, in
tireir status and lcga) capacrt\', are gor-crned irt thetr
national law (Gibb.r x,. Gzul..:19 Phil. 29J.l\a;to r. I larden,
L-6897. Nou. 29, 195Q. In other words. the na[onahtl'
theon' embodied in Art. 15 of tl-re Ncrv Cir'il Code has
been applied bv the Suprctne Court even to pcrsons
who are citizens oIcountrics follr)wins the domici]ran'
theorl. like Americans.
\\'hlt lau' rst. irt' apphccl r. clete.rnurc rirc irabrhn oi the slrrPi
'fl'rc Ia*, oi tire co"tn t' rvirrch thc l.st cargocs lr.c t. be rransp()rted.
or tire larv of tlrerr destrnatron. not thc iarv oF tbe c()unrnr wirere the lost
cargoes were ioaded, or the placc r.lf er-nbarliauon.
Another example: .\Lt. 'l 039. Ner,v (-ivil (.ocle. provrding tl.rat
"capactn to succeeci rs govcmcd bl thc iarv o[ thc natron o[ thc <]ccr.-
dertt". .l Ierc aqain, wc get the picttrrc ql: a. persc.rn rvlro dics, bur rvh.sc
heirs rnav bc cttizens of another coulrtr\,'. \\'irat Iarv should applv to dctcr-
mrne wl-rowill succeed the deceased? The la*' savs it is tl-ie larv of the
countrv of rvhich thc deceased rvas a citizcn. and not the lav,, of the
ciuzenship of his heirs.

3, What are the parts of every conflicts rule?

Unhke a pureh' internal rulc whicll governs a purelv don'rcstic

problem without a foreign element. a conflicts rulc u'hrch indicatbs
rvhethcr to apph' the internal iarv or the foreiqn iaw. hes tu'o parts s'hich
are readiiy recognlzablc:
(a) the factual situation, or thc set of facts or situation pre-
senting a conflicts problern because drere is a ioreign element
involved: and
(b) the point of contact or connecting factor, u'irich is the
law oI tl-rc c()untr1: with rvhtch thc iactual situatit-rn is most
intin-ratcil conuected

In other words, tl-re first part states ccrtain operatrve facts, the
legai consequences wirich are determined in the second part; that is,
<-,f
tl.re first part raises, rvhile the second part answers or solves, a legal
questlon.

Example: Art. 1763, Neu.Cir.il Code, pror.'idrng d.rat "the law

of the country to which the goods are to be uansported shall govern the
habilirv of the common carrier for ther lo-ss, destrucuon, or deterioratron".

lnthrs provision, we have tirc pictute of a cargo shrp traveling

on thc higl-r seas bnt for some reasoll ()r anorhel, the cargo clr part of it
is lost, destroved. or deteriorates durns the vovagc.
w
CONFLICT OF LAWS
CHARACTERIZATION
OF CONFLICTS RULES
1. What do you understand by the concept of "characterization"
in determining what law to apply in a given conflicts problem?
"Cirarzcterizauon", odrerwise hrorvn as "classification" or "quah6caflon",
is tl-re ptocess c-rf assigniuq a certait't set of facts or facttral situatron to its
proper or correct iegal categort'. Evcr-r' rule rli lau'is bascd on situations
of fact. tcrual or ttlagrnccl. sincc tl-re lclislatol: tnust trl tct solve iactual
situatrons that migl-rt arise in tirc futurc, bascd crn past obscn'irtic-,n and
experience. These legal categoties nrar-bc farnilt, relations. colltracts, torls.
succession, propert\:, etc. Bv charactcrtzing the legal prt.,blem. the court
or the parties invoh'ed reach thc proper solutton whether to applv the
local law or the proper fotergn laur
2. Vhat makes the problem of "ch,aracterization" or classification
difficult?
The difficultv in chatacteization artses from the fact tirat
conflicts situatron or problem may be charactelized bv thc lr.r'fari differendr
ti'om tlre characterization of the ltx nu.tat (the Iaw of thc state \r'1th whlch
'I'bc ic.:, irnt :mrgilt regard
the act crr transacticur is most closch'cortnccted).
the problem as torl. whrle thc iex r',ttt.,,.tt rcgards tt as coutract. ()t thc /c:'
lon rntght regard the problem as cr11re, rvhiie the llcx tttu:* considers it
onlv as tort. \X'hich charactenzauon should applvi'
CONFLICT OF LAWS CHARACTERIZATION OF CONFLICTS RULES 2i
Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'd
con\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tire
probiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.
Tire Suprernc Court appl-rcd thc abovc soludon n the followrng
case:
Cibb.r u. Goul rll P. 1.. 59 Pltil. 29): A Califor.nran wife
dies. I.Ier Cahfornian husband clarms the entire properues ac<1urcd
bl the spor-rses during tl-reir marriage as his alone bv accrerion,
follorvirrg California iaw on propertv relations of spouses.
Undel Phihpprne lar.r'. irou'ever, tiris is a problem rn succession,
so tl.rat ir.rheritance taxcs shoulcl be pard bl the husband as thc
lands in qucstion rvere located in the Phriippine, fhe Supreme
Court ireld that tire propertres l.rhenred bv the irusband rverc
subject to inhcritance ta\cs, catcgoriztng the problerrr as <lne of
the successior-r.
3. Suppose the problem of characterization involves a determination
whether the matter pertains to ttsubstantivet' or to tlroceduraPt la*-.
as to
How is the problem to be solved?
'fherc is no question that all procedural matters
are g<x'erned bv
the /c:t fon. 'fhus. matters of sen'rcc oi summons, ioindcr or splittinq ()f
cause of acuon, hox- to appeal. peuocls of appeal. crc. are governed b,r'
the law- of tl.re forum.
llut what abollt prescrtptton of acrit-'n and dre Statute of Frauds?
Are thev substantive (or.rr law considers them such, so tl-lat therr are found
in the Neu'Cn'il Code as rvell as tl.rc llules of Court) or merelv procedural
and, tlretef<-rre, governeci bt the lax.lor?
T'he modcnr trend is to considcr tire prescriptivc periods or thc
a Statute o[Frauds tirat ti.rc partres had in rmnd at the time the &ansaction
took place. Thcn, proceed to applv the intended iaw in its "totalitv"
rncludrng its penc,ds of prescnpticin and its Statute ol ljrauds. ,\n cxcepnon
rs if the subject-rnatter is propertv locatcd rn tire Philipptnes, in u'hich
case Plrilrpprne iaul being tb,c /ax .ritu.r. apphes.
Example: .\. an ljnghshman. borrowcd mone\- firrm B,
another i:ngltshnlan. rr-r Engiancl. evicicnced bv a pr<>n-issotv t-rote. 1,ct
28 CHARACTENIZATION OF CONFLICTS RULES CONFLICT OF LAWS CONFLICTOF LAWS

Lrs assurne that under l-nglish lar'"', the perrod to sue ()n tire promissorr-
nore 1-cfour i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten
(1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhc
issuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action as
prescribed? \'es, because English iarr,. was evidentl_r' intended b1, the partres
t() govern their transaction.

lil
CHAPTER

PERSONAL LAW
THEORIES IN DETERMINING
ONE'S PERSONAL LAW

1. Vhat is a person's personal law?

A person's personai larv ntav bc de Frned as tirat whtch attacires to

hj6 whcreyet l-rc rnal gol the Ia1't[at gcneralll sovcrns his status. clp^cln,

conditron, fhmih'rclations, and thc c()nsc(lucnccs ol- his actuatt<;ns.

It mar, be his national lav'. tirc iarv of hrs domrcile, or ti.re iarv of
the situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurg
on the theorl' applicd aud enforccd 1n thc forum.

2. Distinguish ttstatustt from ttcapacit\''tt.

"Status" "is the place of in society, and consists of

an indrvidual
personal qualities and reiationships, more or less permanent, with which
the state and the commurury are concerned" (?aras, supfa, p. 100). It
includes the civil status of a Person (wh.ether he is single, married,
widowed, or dlorced); his patemity and Frliauon (whether he is legtimate
or iliegitimate or adopted); whether he is a minor or has reached the age
of majonty; whether he has the capacity to enter into vatious transacLions.
It also includes his name, sex, and his profession in certain cases (whether
he is a lawyer or a doctor, or, a iudge or an appellate iustice, etc')'
V . r$'
>..r.lr*Av
30 PERSONAL LA1A CONFLICT OF LAVVS CONFLICTOFLAWS PERSONALIAW 3I

"Capacrn'". on the other hanci. is onlv part of one's status, and The united States, like other common raw countries, follows the
mal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson. domiciliarv theorv.
Confuct of i,au's. p.96,.
6. Is petsonal law the 6ame as national law?
Under out Ctr,rl Cr,dc. therc .trc n\'() \:l h:rnds of clPacln:
(a) juridical capacitl qrassivc capacin-) - rviricl.r ls thc litncss tc) In countries that follow the nationaliry theory like the philippines,
bc tl-rc subject of iegai rclartorts: lnd yes. In countries that follow the domiciliary or eclectic or situs theoty, no.
(b) capaciw to act lactr\-e cxp^crtf, - rvhtcir is thc powcr to do
acrs rvith legal eff-ects. 7. Is national law the same as the law of one's citizenship? In
iArt. 37, Neu' Civil Code) other words , ate a person's nationality and citizenship the same?

.l. babl has jr,rndical capaciq', but it l-ras no crlli1c1.\' t(' 1lct. "Nationality" refers to membership in a political communiq',
one that is personal and more or less permanent, not temporary. A ciuzen,
3. What a(e the characteristics of status? on the other hand, is one who owes allegiance to, and is entitled to the
ptotection of, the State. In the held of Confhct of Laws, however,
(a) itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual. nationality and citizenship are the same; o!, "national" and "citizen" are
(b) it rs a ffrattcr of pubhc or sc-,cirl iutercst. the same. When our law refers to one's national law, therefore, the law
(c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri means the person's law of citizenship. Thus, the national lawof Filiprnos
natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl. is Philippine law. While the national law ofan alien is the lav' of his
(.j It ts a umr-crsal character. \\then a
qcnerallv sr,rpposcd t() havc citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the
certain status ctcated
r.s bv tl-re inq'oi ()nc c()urrtr\'. tt rs deceased). Once a Filipino citizen, however, is naturalized in another counrry,
get"reraih' rccognized iril ovel tlre rvotld. his national law already becomes the law of his new citizenship; the former
Filipino'citizen. once naturalized an American, is now an Amedcan citizen,
4. State the different theories on horl' the personal laq' of an and his national la'v is now Amedcan lavr
individual is deternrined.
8. What are the reasons why some countries adopt the nationality
(a) The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\' theory, while others adopt the domiciliary theory?
virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcr-
ntnecl bl tl-rc iau'oi irts natior-ralttr',.,r hts trattonrl laui Civil law countries, like the Philippines, follow the nationality
theory. In such countdeq the nationaliry theory has been consideted justified
(b) The domiciliarv theon-- bt'r,irtr.rc of rvl.rrch thc status itnd on practical considetations of convenience and expediency. The people
capacin- oi
a 1:crson ts clctct:rntncd bv the larv of hts dornicile of these countries are considered bound by a spint of national unity, by
(also caliccl ti-re tcrr:ttorial theort). a coffunon history and mores, so that the identity and legal position of
their otizens are guaflnteed by the consistent application of theu national
(ci The situs or eclectic theort' - r','hich vicrvs thc particular laws on status and familv relations wherever they may go and even when
place or sitr-rs oi an e\:ent L)r ua1)s:rctlol) as getrcralh thc corrtrolhng they migrate to other counfties. Note that manv Filipinos \r'ho have
Iat'. become naturalized in other countries still want to come back to the
5. What theorv does the I'}hilippines follos'? What about the United Phihppines and die here because they sull consider themselves as FiJ-ipinos.
States?
The domrcihary theory, on the other hand, assumes that the
\\c ftrlioN rhc rr:irronaiitr thr.<,fl.fiftfiUl tn !rr
fy attributes which make up one's status and petsonal relations are intimately
 CONFLICTOF LAWS
CONFLICT OT LAWS

r32
connected viith the country where they have made their home. It is
adopted bv the United States and other cornrnon law countries, whose
populations consist of peoples of different nationahucs with vannng tradi-
dons, cuinrre, and ideals, and whose uniw mav be consideted achieved bv
adopting the law of their domrole as the law that govems their status and
family relations. Countries with mixed populauon brought about by the
migation of foreigners to their shores need the dor'niciliary principle to
certain fusion of their populatron and to avoid the necessity of
^ttdn ^
appli4ng a different law to ptactically every case.

THE NATIONAIITY THEORY

1. What are the weaknesses of the nationalitl theory?

(") It offers no solution to the problem ofa stateless person or

one rvitl.r dual or rnr-rltrple citizenshrp.
(b) It is unfair to consider a person still bound bv his national
lar.r' i[ he has ]ived in another countrv Fot most of his hfe
and ptacticallv all his t-1es ate with that c()untry.
G) It rs sometimes difficult fcrr persons who rvant to change
their national larvs (lihc refugees from Cornmunist
countrtes) to be natr.rralized in other countrics.
(d) It is also somettmes difficult to solve problems reiating to
individuals in countries rvhe;:e most of the peopie, having
come from other countries. have different nattonal laws or
legal svstems.

2. Since citizens and nationals are the same in Conflict of Laws,

we should knowwho ate Filipino citizens considering that Philippine
law follows them wherever they go in matters of status, legal
capaciry and family reiations. [t is, therefore, important for us to
teview Philippine law on citizenship.

First of all, what are the different kinds of citizens in the

Philippines?
 CONFLICT OF LAWS
NATIONALITY THEORY
Filiprno citizens are either natural-born citizens. or
naturalized citizens
(a) Natural-born cidzens are tilose u'i-io are ciuzens tiom btth
\,.rthout iravrng ro perfonn anY act to acquire oi: perttct therr PhiJrpprne
cruzensl-rtp (Art. I\i sec 2' 1987 Constirution)
Ongrnallv classificd as citizens by election verc tllose born
before rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fathers
wlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter,
electetJ Pl-iihppine citizenship. But rvith the provision of the 1987
Constitutron aiso considering as natural-born citrzens "those born before
.Januarr' 17, 19i3 o[ Fihprno rnothers.
u'ho elect Phrirpprne citrzenshrp
upon reirchrng the agc t.,f niajorifi'". th<;sc cl'.rsstfied beforc as ctrizens b|
election are now considered narural-born ciuzens.
Note: Nauve-born Fiiipino crozens are drose born in dre Philipprnes.
Natr.rral-born citizens mav not be nattve born if they rvere born abroad.
(b) Citizens bv naturalization ale those rvho were fbrmerlt
alcns br-rt bv iudicial. lcgislarn'c. or adnrlnrstlatl\'e Process' have become
Irilrprno citrzcns.
Foreign women u,iro are tnauied to itiihpino husbands mav also
bc consiclered ciuzens b)' naturaiization throush said r-narriage if thel I'ravc
no disqualifications ro become Filipino citizens b),natr-rrahzation, and the
ol those rvl'ro had been naturairzcd as Ftliprno
rvives and minor cirildren
crtlzens arc also considered to be naturalized citizens bl denr''ative
lr aturlltzatiorr.
3. What do you understand by the principles of ius soli and fus
sanguinis in the law on citizenship?
tus soli - ,\ person is a ciuzen of the cout-ltl' $'here he was
'l'hus. the babt'of lirliprno
born, or of thc countrt of his birtir. Parents
br,rt born rn tire LiS. is not onlv a Filiprno but also an ,\rnerican citizen
undcr "thc princrple oi 1tt.r .roii. s'hich thc U.S. follows.
'l'hrs
is tire rule that u'e lollow n.r the Pi-rriippines.
Jus sanguinr's -
It is citizenship bv blood: i.c.. those rvirose lathers or lnotltets' or whose
botl.r parents atc Fiiipino ciuzens. rs a Fihprno cttizen
CONFLICT OF LAWS NATIONALITY THEORY
4.who determines whether a person is a citizen of a certain state
or countrv? For example, who detetmines whether a person is a
Filipino citizen or not?
Each countr'or state has the sole porver and authonh ro determrne
under its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\s
provided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n.
Laws (April 12,19301:
',{nv question as to .rvhetirer a person possesses
the nationai:rv of a particular state should be detenruned
in accordance wrth thc larv of tl-:at state.',
,\rt. JV .i the i987 C.nsuturo' ,f the pbilippines clctcrmincs
who are Fihpino ciuzens. No foreign lari; <_,r.no ];rw oi a torergn countr.\,
can determinc who are F-ilipinos. Smilarir,, our constirutron and laws
cannot deterrunc rvhc.r are, for cxar-nple, chinese ()r.r\rnerican citizens.
onlv the larv of cl,rna, or the larv oi the United States. can determir-re
rvho are its citizens.
5. Considering that onlv the Philippines can determine who are
Filipino citizens, mav the problem of the dual or multipre citizenship
of a Filipino arise in the Philippincs?
No, because as alreadl srared, as long as hc is a Filipino citizer.r,
our country is nor concerned if ire iras anl, other citrzenshrp. For example.
if he was born olti'riiprno parenrs. he rs a natural-b.rn citize' under the
rule of .ju.r vn.guini.r. He mav aiso bc a u.S. ciuzen under the prlrcipie of rzr.r
.roh ii hc rvas born rn U.S. soil. But from the pc,rnr of ,,,ieu, of our
Consritutror-r and lav", he is onlr, a Filipnio ciuzen, penod.
6. What about Sec. 5, Art. IV of the 1987 Constitution providing
that "dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law"? Does this provision prohibit
Filipinos from having dual citizenship?
No. Dual cruzenshrp cannot be avorded due to the dr,",erse larvs
of the difierent countries of tire wotid as to who are their citizens ancl
who are not. So, a Filipino mav have dual citizenship. as shown in
euesuon
5 hereof. But the concero oi the aforesard provision of the constrrution
rs not wrth dual cirizenshtp per te but u'ith naturalized cruzens oi the
36 NATIONALITYTHEORY CONFLICT OF LAWS
Philppines u'ho sull rriaintain therr allegrance to the counrries of their
ongrn. Thus. tor candidates for pubhc oihcc rvrtl-r dual citrzensirrp. suffice
1r tirar upon tire irhnp oi tireu-cerdircate of candiciacr. tirer, elect Phiirpprne
crtrzensl-rip to terminate their status as pcrsons rvtth ciual crrrzenshrp.
considering that tirerr condrnon is thc unavordable consccluence of
conflictrng larvs of different srares. (Mertutio u. LlanTano. )07 .taR.1 530
1999 t
7. Considering, then, that it is the Philippine law that determines
who are Filipino citizens and who are not, so that it does not
determine whether a Filipino is also an American citizen or a
Chinese citizen, etc., when would the problem of dual citizenship
of a Filipino arise?
Such questron would arise onlv from the point of view of a
third state. For example, if a gtl rvirose parents ltre Fihprnos but who
rvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng for
scholarship in a French universiq', the French authoriues will regard her
not as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs the
n:x>re effective connecting factor in determurtng what is her citizenship,
Filiprno or Californian. Tlls is appllnng the theorv of effective nationality
embodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq'
Larvs rvirici-r ptx.icles :
"Witirin a third statc, a, person having rn()re thalr one
nadonaliw shall be treated as i[ ire had onlv one. \\ithout preludtce
to tl-re applicationof its iaw tn personal matters and of anv
conventions in force, a third state shail appir, the nationalities
which anr, such person possesses, recognize exclusivelv in rts
territorv either ti.re natiooality of the countrv m rvhich he is
habiruallv and prurcipallv a resident, or the nationahn' of the
couritrv wrth whrch in the circumstances he appears to be in fact
mosdy connected."
Undoubtedlv', in the above problem, Californra is the more
effective connecdng factor in determining whicl-r of tl-re girl's rwo
nationalities ot citizenships, is irer personal Ia-*.
8. In what case or cases may a Filipino have dual citizenship from
the point of view of a third state?
CONFLICT OF LAWS
NATIONALITYTHEORY 37
(a) In a case where a Frlipino (because his parents are F-ihpin.s)
was born in Arnerican soil, he rs a Fihpr'o urder the rule of
.jut ,iogoion
wlrile lre is an ;\mericao under the ruie oi.iut toli.
(b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau,
aliows her to becorne a citjzen of her husband's country like China br,
such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i.
4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemed
to have renounced her PhiJrppine ciuzenship. Therefore, she would be
both a FiLpino and a Cirrnese citizen, if she does nothing to renounce her
Philippine citizenship.
9. Give an example of a problem involving an alien who, ftom the
point of view of the Philippines, has dual citizenship.
Example: A woman who is a Japanese citizen bv blood but a
Chinese citizen by marriage, dies, leaving some properties in our count]-
vzhere she did some business before her death. Since Art. 16, pat. 2, of
the Nerv Crvil Code, requires us to appiy her national law in determining
who are her hehs and how much is the share of each, we should know
which iaw a Philipprne court should applv to her succession; whether
Japanese law or Chinese law.
10. How should the foregoing problem of dual citizenship be resolved?
W-'e should applv the "effective nationalirv" theory prevrouslv
espiained. lf the deceased woman was a domiciiiary of Japan at tire
time of her death, then the Philipprne court should applv Japanese iavl
li howevet, she was a domiciliarv of China at the time of her death, the
court should apply Chinese law: This is because the law of the country
of which the deceased was both a citizen and a domiciliary at the
time of her death is considered more effectively connected to her
than het other national law. Or, stated otherwise, she was more
closely connected to the country where, being a citizen.thereof,
she and her family also made it their home. Needless to s.ay, rhat
countrv where she and her famtlv had their home was closer to her heart
than her other natronai lavz And so, in ali personal and family matters. it is
tl-rat law that the court should applli
11. Suppose in the above problem, the deceased woman was residing
at the time of her death, not in Japan ot China, but in another or a
II NATIONALITYTHEORY CONFLICT OF LAWS coNFLlcroFLAws
NATIoNALITyTHEoRy 3e

lhird countrv, like Singapore? Will the solution to the problem be substantiar errors like citizenship cannot
be corrected tirerein. Hower-er.
tltr riame? tlrs rulrnglras aireadr been supersecieci b'subsecluenr
cases (.Toientin, t.
Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i
tJ aR J ;:..R
The soluuon rvould nout be drfferent because u/e can no ionger il,.*,,ir,l)rr,','.' , ,O
rrv that she was.more closeiv connected to J apan or Chrr-ra, the countries 'Ck4
/ ii, among odrers)
all pr";;;;;ffi;;r,
to the effect tirat rf
of Rure i 0g are foto*'ed and ali persons with
ii
rntercst rn the wrong entrv ifi
rrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, the had been notified and a full biown t'al is held. ,h. p;;.:J;;il,;:
--*^rbJ (rL r iifl
tlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[ longer summary but adversarial, and substantia,
I errors Lke crtizenship iitr
lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrst arreadv be corrected under Ruje i0g. can
Hf,f
applv the nauonaliry theory by taking her rwo natronal laws (]apanese and fis
()hinese) and applyrng them together insofar as thev are consistent and
15' who are citizens of the philippines under
harmomous with each other. BLrt if thev are inconsistent and in conflict the 19g7 constitution?
witi-r each otirer. then we should alreadv apply the law of Singapore, $tr
Art I\" Sec. 1 of
the 19g7 constitution enumerares the {s
which was her domrcile and home at the time of her deadr. ciuzens
of the Phrlippines as follows: ,Jtr
"o rhose wrro a'e ciuze's of rhe phiLppines at the time $#
12. Suppose the person whose succession is in question before a adopuon of rhis ConsuruLion:
of tire :3t

Philippine court is stateless. How should the court decide the case? (2) Those rvhose fathers ormodrers
are ciuzens of trre prrihpprnes; iff
(3) Those born beforeJanuarv Ii,1g73,
Srnce the person tn questron is stateless and, therefore, has no
olFilipino nr;;;;r.
who elect phrhppine crdzenshrp upon reachrng
national law, we cannot apply the nationalitv theory (Art. 16, sec. par., rt," ng. .f ;;;;;,y,
and
New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comes (4) Those who are naruralized in accordance
to the rescue, and the court shall appll' the larv of hts domicile or if he has with law.,,
none, tire law of the country of his temp<,rrar_v domicile. were citizens of the philippines under
Yn.
19' the 1923 Consdtu_
uoni
13. May a declaration of Philippine citizenship be made in a
petition for naturalization? Art. IIL Sectron I (l)
"f the 1973 Constrtuuon provides that the
follow:ng are cirizens of the philippines:
In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, the
Supreme Court held that the court. in a petiuon for narureirzation, cannot "0) Those who ate ciuzens of the philippines
make a deciaration that the apphcant is alreadv a Fitliprno ctttzen for the ar the ume of the
adoption of this Constitution;
reason that rn this jurisdiction, there can be do independent actron for the (2) T'ose w'ose fathers or motrrcrs
judrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv for are ciuzens of thc pl'lippines: r:li:
(3) Those who ,.:,.It{OO-e cruzenshrp pursuant to the prousions
i!:
the settlement of jusuciabie controversres, which rmpi,v a given nght, of the Constirution of 1935; and
,;Lr

rili
legally demandable and enforceabie, an act or omrssion violative of said (4) Those who are naturalized in accordance i;:
nght, and a legal remed)' for the breach of sard right. wrth law.,, iri
Itl,
ii4
17' Since the 1973 constitution considers
as F'ipino citizens those
14. May a declaration ofPhilippine citizenship be made in a special who were such at the time of the adoption
proceeding for correction of entrv under Rule 108 of the Rules of of said constitution on
Januarv 1711973, who are those refetred to in said provision?
Court?
They are those enumerated in Art. I! 1935
In a long line of cases, the Supreme Court fotmerlv heid that Consutu tron, t0 at:
"(1) Those who are citizens of tire philippines
since a petiuon under Ruie 108 contemplates a summa4 ptoceedrng. ar the ume of the
adopuon of the Consnrutron of rhe phihpprn.s;
 CONTLICT OT LAWS
IO NATTONALITYTHEOR}
12) Those born in the Phihpprne Isiar.rds of ioreign parents who.
befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubirc
office in the Piri)rpprnc Isiands:
(3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^:
(.t) Those v,'hose mothers are citizens oi the i)hthppurcs and.
upon reaching the age of majortq', clect Phiirppine cicizenship;
(5) Those who are naturaLzed rn accordance rvtth lav":"
18. Differentiate the citizenship of children born of Filipino mothers
and alien fathers under the 1.935 Constitution, from those born of
Filipino mothers and alien fathers under the 19'73 and 1987 Constitutions.
V4rile the 1935 C<-,nstitutron consrders as irihprno ciuzcns at brrth
or as natural-born citizer.rs only those whose fathers were Filipinos at the
time of therr brrth. rvhle those born of Filipino mothers and ahen fathers
still had to elect Philippine citizenship upon reaching maloriq' before they
could be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers
(wiro are really Fihprnos because Frliprno blood flows through their veins)
was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl'
consider as natural-tlorn citizens those born of Fiirpino mothers, even if
the fathers were ahens. ln other words, those born after tire effectivtq' of
the 1973 Constitution on Januan 17,1913 of Fdrpino mothers but of
ahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprne
citizenslup.
19. In the case of election of Philippine citizenship under the 1935
Constitution, as of what time should the mother be a Filipino? At
the time of her marriage to an alien, at the time of the childts
birth, or at the time of the child's election upon reaching the age
of rnaiority?
At tl're tirne of the mother's marnage to an aiien. F-or if we
require the mother to be a Filiprno at the time of the childt birth, verv
few childlen wtll be benetrted by ths provision because the mother would
have alreadi' become an alien at the time of her marriage (followrng the
irusband's alien citizenship) and before the child's brrth. Likewise, if we
requite that tire mother should be a Irilipino citrzen at the ume of the
child's election, again ven' few children would be able to eiect, because
their mothets would have alreadv become a[ens when tirey got married
to thet ahen husbands and iong before tire birth of the children.
CONFLICT OF LAWS NATIONALITYTHEORY 4I
20. where do vou find the lau'providing for election of philippine
citizenship under the 1.935 Constitution?
'fhe lau'is Commonwealth ,\ct No.
625.
2l"v/ho were Filipino citizens at the time of the adoption of the
L935 Constitution on May 14, 1935?
(1) Those born in the phil_ippines wjro resrded therein on April
i1, 1899 (the date of the ratification of the Treaw of paris b.r-".n
the U.S. and Sparn) and were Spanish subjects on rhar date, unless
thev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935;
(2) Nauvcs of the Spanish i)eninsula u4ro resrded ln the Philippines
on,'\prrl 11, i899. and rvho did not declare tirerr intentron of
preserving their Spanisl-r nauonalN between tl-rat date and Octobcr
11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherr
citizcnshrp by lltai' 14, 1935;
(3) Narurahzed citizens of Spain who resided in the phrhppines
on April 11 ,1899 and who did rrot declare thcir intentron of
preser'ing their Spanish nationahn'between that date and ()ctober
11, 1900, unless they had lost therr cirizenship bl Mar, 14. 1935;
(4) Chiidren born o[ 0). (2).and (3) subse<;uent to April 11,
1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935;
(5) Persons rvho becamc narurahzed citizens of the phrhpprnes in
accordance rvrtir the procedurc sef forrh in the Naruralization Law
since rts enactment on March 22, '1920. unless tlrey had lost therr
Philippine ciuzenship on or before May 14. 1935;
(6) Childlen of persons embtaccd rn (5), uniess thev had lost
theu'Phrhppine citrzenship on or betbre \.{av 14. 1935;
(7) Fihpino women who. after havrng iost Phijrpprne cruzenship
by matriage to forergners, irad subsequenth' become wrdou,s and
regained Philrpprne cruzensirrp on or before lvlar'14. 1935
of (7) who were stiil under 2i vears of age ar the
(8) Children
ume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)
 CONFLICT OF LAWS CONFLICT OFLAWS NATIONALITYTHEORY {3
NATIONALITYTHEORY
Filiprnas who married Chinese husbands legally. Since under
25' 195)'
L9i GR L'5t97' Sept' the law of China, they followed their husbands' citizenship,
Phil. i2l;Talarocl'
I
got marned to they all became Chinese. That is why many Filipinas later
who' before Mav 14' 1935'
(9) Forergn women opted not to marry their Chrnese husbands legally, so that
citizens of the Phrirpp-t"
*i; *nt themseives be lawfuiiv naturalzed on they would remain Filipinos and theit children, being
n^i fott their Philippine citizenship
n the Phiiippi"tt, "t'r"l' 'nty illegitimate, are also Filipinos.
or before MaY 14' 1935;

the strength (2) Under the 1973 Constitution: A female citizen of the
Philippures who' on
All other persons born in the
(10) the Roa case' Philippines who marries an alien shall retain her Philippine
n of thejut nli docmne in
of the erroneou' "ppht"oo cidzens' unless they citizenship, unless by her act or omission, she is deemed,
tt"tts.";ltrtgino
were mistakenly dtd;;;'tr" citizens by tvr under the law, to have tenounced her Philippine citizenship
1'g3' These are
had lost thti' titizt"li*it *t 14'
(Art. Ill, Sec.,2, 1973 Constiuion)
tuit'' GR L47616' Sept' 16' 1947:
iadicata. (See Tan Ch;;;"1'i' 'J'
Talaroc u. L5l, suPra) (3) Under the 1987 Constitution: Citizens of the Philippines
who marry aliens shall tetain theu citizenship, unless by their
122-na)
Paras' suPra' PP' act or omission, they are deemed, under the laq to have
renounced their Philippine citizenship (Att. ry Sec. 4, 1987
citizenship under the 1935
22. \(hy is the law on election of Constitution).
law?
Constitution a transitorY
of Note: Unlike the similar ptovision in the 1973 Constitution, the
it was effective only aslong as there were children
Because above provision of the 1987 Constinrtion now applies to both males
wetJdlo*ed to elect Phihppine
FrLpino mothers ""d.'il;;;*'*i'o from and females who marry aliens.
otizenshrp ,rpot' "^tn-g
2l years'.H:*:u"t after 1994 (21 years
those who
there vrere no longer
the effectivity of th" tS;iot'sutt'tion)' have already
could elect Philipo-t ';;;;;'
itt^ttt ^[ of them would 25. What is the citizenship of an alien woman who marties a
or did not elect at all' in
teached 2l andtl"y ti;;;;iaheady
elected
of Filipino husband?
followrng the citizenship
which latter case they t;;il;
be aliens

their fathers' (1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir was
held that the ptopet proceeding vuherein an alien'woman married to a
mother of a child born under the 1935
23. Suppose the Filipino is Filipino can herself be declared a Filipino citizen is a naturalization
to her alien husband' what
Constitution-"" "J;;^ti;"'ata ptoceeding in a court of justice, and that any such declaration by any
the citizenshiP of the child? other office or agency is null and void.
the rnother
followed the ciuzenship of
The child, berng ille gttrmate' from birth' Many Filipinos criticized said ruling because it imposed more
the chrld is a Filipino
without need of tttJ;""' fit"te' stringent requirements on an aLien wife of a Fiiipino husband vrho ordi-
marries a nadly follows the citzenship of the latte4 than an applicant for naturalization.
of a Filipino woman who
24. Vhat is the citizenship Fortunately, this ruling was later abandoned.
foreigner?
If she acquired the nauonality Q) h MEa Ya Lin of Innigration,4l SCk4 292
Yao a. Comm.
(1) Prior to the 19?3 Constitution: (1971), the Supreme Court reversed the Burca ruling and held that "under
lost her Philippine citizenship'
of her aiien husband' she the many Sec. 15 of Commonwedth Act No. 475 [the Revised Naruralization Law]*
Filipino' Examples are
O'htt;;' tttt tt*"-ta a
 44 NATIONALITYTHEOR\ CONFLICT OF LAWS
an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcs
tp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirr
PhrJrppu"res undcr Scc..l r;f'thc sarnc iat:"
'l'his cleciston
rn cifecr ruic.i
that rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1n
a courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.
2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl
\vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiiecl
to l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencr
Llic rlrr' Lnrnirlratron (.orlnrissiorr.
Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusband
rviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinc
'ot suiicr f'.m a'r .f
citrzenship c;f her husband, pro'idecl shc d.cs
rltt tlrstltrahficluutts tlrtd('r )cc. -l , tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,
'f
'l'lirs is
a casc of derivative naturalization (slr-rilar ro rhc ninor clrildren
ol :r uarurali;zcd ljilipint citizcn;.
(3) i.{orvevcr:, rn the rccent case ot: l.)lumanton u. I)omtn.qa. 24(t
S(.]t,\ 7+6. ti.rc Sup.rcnrc C,rurt hcicl thar tircr-e is no lau,g,r^rinn,i,lg
alicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcn
l)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcs
rflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,r
arc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc oi an alcn w()n-]an to a i-rusbancl
d<.rcs r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs crcuse he::
'.t
fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration .f her
cxteuded sta\- hcrc as an ahcn.
Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marliccl
to a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation for
traturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r
It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere and
itsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.
26. What is naturalization, and rvhat are the clifferent modes of
naturalization?
Naturalization is tl-rc pr()ccss of conienrng on :rn airen the
citizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": It
is cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bc
cr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru:
CONFLICT OF LAWS NATIONALITYTHEORY 45
The modes of acq''rngPhilippine citizenship bv naturarizadon are:
(1) By iudicial process in accordance with Commonweaith Act
No. 475, as amended bv Repubiic Act No. 530;
(2) By legislative process; i.e., when Philippine citi.zenship is
confeted by a special act of Congress on deserving aliensi
(3) Byadministrative process, under Rep. Act No. 9139, otherwise
known as "The Adminis&ative Naturalization Law of 2000",
approved in 2001. Under this laq a Special Committee on
Naturaiization is created, with the power to approve, deny or
reject applications for naturalization irled with said Committee.
Members of the Committee are the Solicitor Geneml as chairman,
and the Secretary of Forergn Affairs or his representative and the
National Securiw Adviser as members.
Derivative rr"*r.ti""tion is Philippine ciuzenship conferred
on: (l) the rvife of ftar'xaLzed husband; (2) the mrnor children of a
^
naturalized father; and (3) the a[en wife of a narural-born or nafuralzed
citizen, in the latter case, the mariage having taken place after the husband's
naturalization.
Be it remembered that during the penod of Martral laq Pres.
Marcos issued Letter of Instruction (LOl) No. 270 providing for
naturalization by Presidential Decree. The applicants'were screened by a
Special Committee in a summary manner, which then recommended
those found eligible for natutalization under said LOI to Pres. Marcos,
who would issue a decree declanng as naturalized Filipino citizens those
included in the list recommended by the Special Committee. Said
Committee is similar to the Committee on Naturafization created by the
recently approved Rep. Act No. 9139.
27. What are the qualifications fot iudicial naturalization under
Sec 2, C.A. No. 475, as amended?
(1) The petitioner must not be less than 21 yeats of age on the
date of the hearing of the petition;
(2) He must have, as a rule, resided in the Phiiippines for a
continuous period of not less than ten years;
 CONFLICT OF LAWS
16 NATIONALITYTHEORY
(3) He must be of good moral charactet, and believes in the
principies undetlving the Philippine Consdrution' and must
have conducted himself in a proper and irteproachable
manner during the entrre perlod of his residence in the
Philippines in his relarion rlrth the constituted government
as well as with the cornmuniry in which he is living;
(4) He must orvn real estate in the Pliihppines worth not less than
P5,000, Plllippine currenc\'! or tnust ltave some iucrauve trade,
prr-,fession. or occupauorl:
(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and
anv one of the pnncipal Philipprne languages; and
(6) He must have enrolled ]ris minor children of school age in
ant'ol the pubhc or pnvate schools recognizcd bv the Buteau
of Prtvatc Schools where Phllippine historr'. government,
and civics are taugirt or plescnbcd as part of the school
cutrtculutn ciuriug the elltire pcliod of tire testdence lequu'ed
of hrm. prior to the hearing of his petiuon ti;r naturalization
as cigzcn.
28. What are the disqualifications for natutalization under C'A'
No. 473, as amended?
r\ccording t() Sec. 'l of said Act, tl.re foliowrng callnot be
na turalizcd as Plrilipprne ciuzens:
(1) Persons opposed to organized goverflment or afFrliated wrth,
any association or grouP o[ persons rvho uphold and teach
doctrines opposine all organizcd governments;
(2) Petsons defending or tcaching the proprietl of vtoleuce,
personnl assauit or assassination for the success and pre-
dotntnance of their
rdeas;
(3) Pol,vgamists or believcrs in tire practicc of pol,vgam,v;
(4) Persons ccrnvicted of a crirne involving m<-rral turpirude;
(5) Persons suffering frou mental alienation or incurable
contagrous disease:
(6) Persons of therr residence in the
.r'l.ro, during the period
Phihppines, have not rnrngled sociall,v wrth the Filiprnos' ot
CONFLICT OF LATVS NATIONALITY THEOR\
rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract.
the custorrrs, tradrtrons. and ideals of the liilipinos:l
17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rs
at war: and
(8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the United
States) wlrose lat,s do not grant Frlprnos the nght tr.r
bccomc naruralizcd crtizcns or subjccts thercof.
29. What are the qualifications for administrative naturalization
under Sec. 3 of Rep. Act 9139?
(1) The applicant must bc boln in the Phdrppines and resrding
therein srnce birth;
(2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gc
at the ume of the Frhng of hrs/hcr petluon;
(3) The applicant must be o[good moral character and beiievcs
in the underl,ving principles of thc Constitution, ancl must har,c
conducted ilmself/hcrseliin a proper ancl u'rcproachablc rnanner
during his/hcr enrire pcriod r>i residence in the Phihppines in his
relatron with the duiv constitutecl government as rvell as rvith the
communirv in u'hrch hc/sirc rs hvrng;
(a) fhe applicant lnust have recetved hislher pnrnarv ancl
secondari' educatron in anv pubirc school or private educational
insurutior.r dulv recognized bl thc Department of F.ducation.
Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anri
civics are taught and prescribed as part of tl'rc school curnculun-r
and where enrollment is not limited to anv race or nationaLn;
Pmuid.ed, that sirould he,/she havc rninor children oi school agc.
he/she must have enrolled tirem in simiiar schooisl
(5) The applicant must have a known trade. business, profession
or larvful occupation, from which hc/she denves incornc sufficier.rt
for ins/her suppon and if helshe ts rnamed zndf or has dependents.
also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall not
applv to app[cants whc.r are coliege degree hoiders but are unable
to pracltce their profession becausc the'r'are drsqualitlcd to do s,:,
bv reason of their ciuzensirrp;
4H NATIONALITYTHEOR\ CONFI,ICT OF LAWS CONFLICT OF LAWS NATIONALITYTHEORY 49

(6r 'i-irc irpplrcent mLlst i)c:ible r<, rcrcl. t'rrtc and spcak Friinin<, (3) B.v subscribing to an oath of aliegiance ro supporr rhe
or anr of tirc tiiaiects ol- ti-rtr l)htiipt-rtncs: enc] constitution or laws of a foreign countrv upon attainrng
fwentv-one vears oi age and more
irl 'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)c f"ti-tllnos and (4) Bv rendering service tq or accepdng commission in, the armeci
eviuced a sinccre desrle to learn anci clnbrxcc thc customs, forces of a foreign country; .rl!

traditrons and rdeals oi thc Fihpirro people. (5) By cancellation of the certificate of naturaiization; f{
,cq
(6) By having been declated by competent authoriry a deserrer of
nt
30. What are the disqualifications for naturalization under Rep. the Philippine armed forces in time of wat, unless subsequentlri ifl
iIi
Act. 9139? a plenary pardon or amnesty has been granted; and :1',ri

;t
(7) In the case of a woman, upon her marriage to a foreigner, if .,d
,ii
Sec. -{ of said .\ct provrdes tl-rat tirc iollorving arc not clualified by virtue of the laws in force in her husband's countrl', she l$
'ti
to bc traturaiized undcr tire same : acquires his national-ity. :ll

,,.t

i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrth Note, however, that under the 7973 and 1987 Consututions, the
anl associatron or grollp of pcrsons u'lro uphoid and tcach woman in No. (7) above retains her Philippine citizenship unless bv her
cloctrines opposmg all organtzeci govemlnen ts ; act or omission, she is deemed under the law to have renounced her
(2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' of Philippine citizenship.
ltoience. personal assault ol rss;rssinrtlon for the success or
plcdormnance oi their ideas; 32. How may Philippine citizenship be reacquired?
(3) Polvgamrsts <x beher.ers ln the practlcc of pr.,lvgarny;
i-l)
'fhose c()nvlctecl oi crimcs rrrr-r,lr-ing, r-r'rolal turpitudcl Under Sec 2 of Commonwealth Act No, 63, as amended bv
(5) I hose strffcring irron-r r-ne rrtl1 lh.'rration or incura[rle Rep. Act No. 106, Philippine citizenship may be reacquired as follo'*'s:
con tagl(r Lls tltseas cs ;
'I'hc.,sc
(6) u,irrr. dLrmg thc 1-rcnoti oi thcil rcstdcr:cc jlr thc J)lilrpprlcs. (1) By naturalization; Pnuided, that the applicant possesses none
havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc not of the drsquahfications prescribed in Sec. 2 of Act No. 2927:
cr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts.
traditir.,ns ancl iclcals of thc iirhpinos: (2) Bv repatriation of deserters of the Armli Nary, or Air Cotps
(7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines is Proaidcd,That a woman who iost her citizenship bv reasor
at t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and of her mariage to an alien may be tepatriated in accordancr
(.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr not wrth the provisions of this Act after the termination of th(
grnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublccts mafital starus; and
thercoi
(3) By direct act of the Nauonal Assembly (now Congress).
31. Hou'mav Philippine citizenship be lost?
33. What is the procedure incident to reacquisition of Philippin,
L,'r-rdcr (lon-rruout'<'altit .\cr. 6i l;r llcp. ,\cr, \-o.
:r: tlttcndccl citizenship?
Iti(r. " 1' Ltn no crcizcrr rlr,.' iosr. l-ris ciuzcnsiriP in arl oi the foli<;s'ing
Sec. 4 of the same C.A. No. 63, as amended, provides as followr

Iil naturaiizatron in n tirrcrgn coulrtr\'; "The procedure prescribed fot nztvrabzation undet Act292i . a
I\' cxprcss r('1)LLllciiltri )n oI crttzc nshilr amended, shall apply to the reacquisition of Philippine citizenship b
 NATIONALITYTHEORY CONFLICT OF LAWS CONFLICT OF LAWS
'O

naruralization provided for in the next preceding secrron; Prouided,That

the qualihcations and special qual-ificauons presctibed in Secrions three
and four of sard Act shali nor be requred; and pror,-rded ftrrther.
(1) That the applicant be at least rwenw-one vears of age and
shall have resided in the Philippines at least six monrhs
before he appiies for naturalization;
(2) That he shall have conducted himself in a proper and
i::reproachable manner during the entire period of his residence
in the Phiiippines, in his relations with the consriruted

E
CHAPTER
government as well as 'with the community in whrch he rs
livrng; and
(3) That he subscribes ro an oath declating his intention to
renounce absolutely and perperually all faith and alleg'iance
to the foreign authorir)', state .or sovereignw of which he
was a citizen or subject.
THE DOMICILIARY THEORY
34. How about repatriation? How can it be effected?
1. What is the domiciliarv theory in Conflict of Laws?
Rep. Act 8171 on repatiarion of Frhpino women who married
alens and natural-born Filiprno who have lost their Philippine ciuzenship,
It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns,
provides:
and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or the
"Sec. 1. FiJipino women who have lost their Philippine ciuzenship
by mariage to al-iens and natural-born Fil-ipinos who have lost their
l* cloniilii.
Philippine citzenslup, rncluding thet minor children, on account of pohtical
2. Define domicile.
or economic necessity, may re-acquire Philippine citizenship through
repaftiation in the manner provided in Section 4 of Commonwealth Act
No. 63, as amended: Provided, That the applicant is nor a:
It ts thc 1>lace rvherc a pcrsol'l "l-ras l'ris trlrc. Ftxed. permanent
home and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent.
(1) Person opposed to organized governmenr or affiliated with
Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).
an association or group of persons who uphold and teach
doctrines opposing organized goverflmenr.
It is "thc placc rvhere a pcrs()n has a settled connection for cerrain
(2) Person defending or teaching the necessity or propriery of
legal purposes, either because hts hon-rc is tl.rere or bccause that is the
violence, personal assauit, or association for the predorninance
placer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).
of their ideas;
(3) Person convi,cted of crimes involving moral turpitude; or
"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons,
(4) Penon suffering from mentai alienation or incurable contagious
thc domicile oi natr.rral persons is the place of their habttual residence."
diseases.
[\rt. 50, Nes' Civil (]ode).
Sec. 2. Repauiation shall be effected by taking the necessary oath
of allegiance to the Republic of the Ph-rhppines and regrstarion in the
3. Are ttdomicile" and ttresidence" the same?
propff civil registry and in the Bureau of lmmigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certifrcate of
reg'istration and issue the certificate of identification as Fil_ipino citizen to
" s r x rt is an established principle in Confuct of Laws that
'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person
the repatriated citizen."
 CONFLICT OF LAWS CONFLICT OF LAWS THE DOMICILIAITY THEORY
.1 THEDOMICILIARYTHEOIIY

glr-ctl Diacc" bv tlrc lau' tire place in *'irich rre resicie-.. or according to thc
rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a 'f
ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8, formairtres obsen'ed rn his counrrt'. or rn conformin, wrth tirose
u4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl
"Rcsidence' is used to tncLcate a pl^cc of abode' w'hethcr
pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence (3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual or
t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man
tnal' multiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of the
lrave a residence in one place and a dornicilc in another. i{esidence is not nationaliw theorr'.
rlorntcile. but domicilc is residence coupled rvitlr lntentrou tr) fel1]aln tol
nrr unl-ilruted trme. ,\ lll^n can have one dornrcilc for onct and the same (4) Dunng tl-ie earlv vears of American colonization of thc
l-Ia\re nufiler()us places of residence"' Philippines, our Supreme Court ur solrrc cases apphed the domrcilian-
l)rlrpose at an\' tlme, but he mav
(litt/enq.rtr t'. Rcp.,95 Plttl. 890) tl-reor1'. like the case of the vahdiri' of a drvorce decree obtained abroad.

4. Distinguish "domicile" from "citizenship"' 15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.r
follorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'
Dorniciie in gencral speaks of one's perrnanent Place of abode' countr)., rvhich follorvs the nationahfi- theor\'.
rvhile citizer-rship or nauonality indicates ties of allegiance and
lovalti A
domiciharl' of
pcrson ma\. be a crtrzen or national of one state and n (6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarn
.;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders of grcc[ follow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a
cards in the Lj.S.. stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv comparatle studv oi thc nationalitv and dorniciharr tirconcs.
^rc
to rvhere thev havc per-rnanentll migratcd'
6. What law determines one's domicile, his national lau'or the lex fori
5. considering that our countrv follows the nationality
theorl', whv
theorv? The prcvarirng rule is that thc iorurn applics its orvn concept ()i
is it still important for us to know and studv the domiciliarv
domicile in deterrruning the dornicrle of a htrsant bctbrc its courts.

For several reasons! tratr-relt: 7. Wrat are the different kinds of domicile?

(1) lnsome cases' our own larv nakes the hrv of the domrcile (a) Domicile of origin: "I'hc domtcile assisnccl b)'in*'t,, a pcrs()1r
. oi ()i c()nfllcts cases' at the rnoment oi his bu-th.
a persor-r the controllir-rq tactor in thc soluttt,lr
(b) Constructive domicile ot domicile by operation of la\\':
Example: "'l-i'rc rev'lc'ltl()rl of a r'vill clouc bt' a Persoll firc domicile assigncd bv lau' to a person after birth on account ()f r]
clutstcicthcl)hilrppincsbr.aPels()llrr,lrrldoest.t(}tllavelrisdo' legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-
tire /rr
micile in the Phiiippines is vahcl rvhcu donc according to
/ocz celebralionil. o1. n...,.d'.'g to thc ialv oi tl-re piacc t;f tlre testatelr,.s (c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccause

domicile at the time " (Art 829. Neu' Civil Codc) he has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds to
retLll1t.
(]) Sornetimes. our larv makes either the larv of one's natlonalitv

or that of hrs domicile rs the contrt.rlhrlg thctor' Note: I)onricile oi ongur is acquired at birtl.r: tireleforc. it ncver
cirangcs. \\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt,
Example: " flre will of ln alien wlro is abroad produces 1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.

effect in the Philtppures if macle s'iti.rtirc fornralltles prcscribcd

rr
54 THEDOMICILIARYTHEORY CONFLICT OF LAWS q CONFLICT OF LAWS
T
THEDOMICILIARYTHEORY 55

r AIso. domicile of origrn never changes, fot a person ts born

onlv once. while constructive domtcile mar change from ttme to nme. (3) The domiciie of origin o[a foundling 1s rhe countfii where
E
$
t[
{r
,
like wiren the parents of a minor change dotmcile serreral nrnes. rt was found. F
t
I
Botb domrcile of origrn and constructive dornicile are, horvever, 10. Give some rules in determining one's cons*uctive domicile. t,i[
assrgned by laq while domicile of choice is the result of .tl-re voiuntan' .,$
ill
will and action of the person concerned. (1) N,hnors i,ifl
;l*
8. State some basic principles regarding one's domicile of choice. l
(a) if
legrtimate. the domicilc of both pareots. .r ili
In case of disagreement, rhar of the father, unless irlii
(1) No person can ever be without a domicile; or! eveq/ natural
there is a judicial.order ro the contra$,. (Art. 21 1, Familv ,i
'ill
il
Person must have a domicile. Code).
(2) A person cannot l-rave fwo simultaneous domiciles.
(b) If illegrtimare, the domicile of the mother (Arr. 176, 1:il

(3) A natutal person, lree (not a prisoner) and vi jui.r (one of
age and under no drsabiliw) can change his domicile at pleasure.
(4)A domicile once acguired, is retarned until a new one is gained.
(5) The presumption being in favor of the continuance o[ an
exisdng dornrcile, the burden of proof is on the one who
alleges that a change oF dornicile has taken place.
(6) 1b acquire a new domicile of choice, the follorving must concur':
(a) residence or bodilv presence in the new- localiry;
(b) an intenuon to remain there(.animu.s manendl; ar.d
(c) an rntentron not to return to the former abode
(animu.r not reuerl enci)
(Calie,go t' I ara, 7J Phi/. 45))
9. Give some rules in determining one's domicile of origin.
(1) if the child is legitimate, irrs domicile of origrn rs that of hrs
parents at the tlme of irrs birthl if thc parents are separated, the domicile
of tl-re custodial parent.
Ifthe child is illegitimate. hrs dor-mcile of origin is that of the
mother at the time of his birth.
Famrly Code).
' (c)In case of absence or death of either parent, rhe
domiciie of the presenr parenr. Even in case of the remarriage
of tire surviung parent. stili hrs/her domrcile determines the
construcrive domicile of tl-re minor child.
(d) If the cirild is adopted, the domicile of choice
of
the adopter is the child\ construcdve dornicile.
(2) Insanes, idiots, imbeciles
-
Since insanes and other mentallv rncapacitated persons
cannot select their own domicile, the larv assigns their domicrle
to them.
(a) If fiey arc below the age of majontli rhe rules <;n
minors applr, to thern.
p) If they are of age and have guardians, thev follou,
the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans,
tireir consrructive do'ucile is their domicile of cr-roice before
thev becamc insane.
(3) Married women -

If the child is legitimated, the dormcile of his fatirer at the time If fie
(a) marriage is valid;
of ils binh controls, since tire eflects of legrtlnauon rctroacts to the (i) The consrrucrn'e domicile of the wife is tl-re
time o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).
domrcilc of borl.r spouses, ur.rless the larv alk;u,s thc
wifc to have a separate domicile, tor valid and
(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcile
compelling reasons (Art. 69, Jiarnilv Code).
of his real p^rents at tirc tune of his brrth, not the domicilc of the adopters
(ii) If there rs legai separauc_,n bcrween the spouses.
 THE DOMICILIARY THEOR} CONFLICT Of LAWS CONFLICT OF LAWS
56

the wife can have her os'n domrcile of choice.

ril) If there ls separaucrn de talo, the wife can
aisc, have a separatc domicile (Dc ra I tna r.'. l tliurtu,.

'1:/ Phi;./ i't'

(b) If the martiage r.s voidable: Appll tirc same ruies as

when the maffiage is va[d. However, after annulment, the rvife
can freely select her own domicile of choice.
CHAPTER
(c) If dre marriage is void: Since tirere is realv no marriage
in dris case. dre.lrfe can have a domlcile separate iorm the husband.

(4) Other persons-

(a) Convict or prisoner - He is not free to have a

domicile of chotce, so iris dornicile rs the one he had possessed
THE SITUS OR ECLECTIC THEORY
pnor to his incarcerauon.
1. Vhat is meant bv the situs or eclectic theorv?
(b) Soldrcrs - Since thev are compelled to follov"' thc
Under the sirus or eclectic thcorl', the capaciq; condrtron, sratus.
dictates of the rnilitart', their domicile rs theu domicile before
their enlistment.
or capacin of a person is gor.erncd not necessarill bv the lau, of hrs
natronalihj or tl're lau' of his domicrlc. b't br- tl.re law of thc place (.rlzr.r)
where an llnporranr clement of the probleffl occurs or rs situated.
(c) Pubhc olficials or empiovees abroad hke diplomats,
consular ofFrcials, etc. Since their stal' abroad is rn their official
and not in their personai capaciry', their domrcile is the one thev
Ilowever. thrs theo.r drsu'guishes tu'o l'ncls oipartrcrpation of
the individual concerncd.
had before thev r.vere assigned elseu'here, unlcss they voluntarilv
adopt tireu place of emplovment as their permanent residence.
(a) If hrs parricipatlon is actir.c, i.e., rvhcn he does thc acr
voluntarilt', tl-re go'erning law is -the lav' of tl.rc actual situs of thc
ffansactron or e\.ent, -
(b) If the partrciparion is passi'e, as wi-re' the effccts of rlre act
are set forth or determined by law, the go'e'ring law is the lav- of thc
legal situs; i.e., the domicile of the inciividual concernecl.

Example: The marnagc benveen rwo Frhpinos rn Flongkong.

(a) Sincc the acr oi getrurq mirrried rs voiuntan. the vaLdirr.

of tlrc nrarriage 1s goveutcd l>r rts acrual situs,.or the /e:r. /u,.t
ulebraliani.r i.\rt. 26. firsr par.. Fan-uir. (-ode)
 CONFLICTOF LAWS
rI THESITUSORECLECTICTHEORY CONFLICT OF LAWS

(b) \Eth respect to tire rights and obhgauons, and proPern'

relauons. oi tire Filipino couple. ltowever' tl,ev are governed br'
the nauonal lau' of the spouses. w-hicir regulates or fixes sucl't
matters benveen thern; in other words' the iegal situs is the
national law of the sPouses. (Art. 8(). Familv Code)

2. the act or transaction involves propertyr real or personal, what

If
theory do we apply, the nationality theory, the domiciliary theory,
or the situs theory?
CHAPTER

Art.16, tlrst par.. of the Nerv Civil Code provldes that "real
properw as well as personal ProPert) is subiect to the law of the countrv
where it rs siruated". Thus, if tl-re act or uansaction involves properq-'
BII
whetl-rer real or personal, the law that deterrnincs the validiry of dle tfansacdon
ts thc /ex rttar or /ex rei ilae. Flven the capacifi of tire pardes t() the uansactron THE PROBLEM OF THE *RENVOI''
ts governed by the /er titu.t or /ex rvi .silu.r, r-rot bv tl-le lex nalionaki of the /sI
rhnuiti. 1. What is meant by "renvoi"?

"Renvoi" is a French rvord which means "refer back" or "renrm".

ln Anglo-American countries, the tenn used is "rernrssron", which means
to refer a matter for consideration or judgment.

2. rWhen does the problem of "renvoi" arise?

Everv internai or municipal hu'oix. state has two pnrts; (1) its
purelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J
Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.r
elernent.

Now, the problera of "renr-oi" ariscs rvhen there is doubt as tr-,

r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where the
problem arises) to the foreign larv irrvolves (l) a refercnce to the internai
larv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.
inciudrng its confucts rules.

In such casc, if thc hrst statc firllorvs the nationahn, thcorr', and
the second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"
wiil rn<-rst probabli artsc.

Take the case of a (lalifrrrnia cttizen who hacl rcsidecl in

60 THEPROBLEMOTTHE"RENVOI" CONFLICT OF LAWS
CONFLICT OF LAWS
THEPROBLEMOFTHE-RENVOI" 6-!

counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16, ptobiem back to us, which would result in internauonal
sec. par., of the New Civil Code provides that in testate or intestate we should applv Phiirpprne lau, (the law of tl:
football. Hence.
succession, we should appi,v the national law of the deceased which. in
this case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for its
d'e c ted bl, th. .or' flrcts rure s o f c arifornia,
makes acknowledged narurar children forcecr rre*s
*,iffi:tt;rfffi11i:
own citizens who reside there, and another rule fot its ciuzens who have of ,rr" p*."i. ,J.t"gr*ug
them, while Carifornia ia.r'pro'ides no legitrme for
their domiciles abroad. In the latter case, California law provides that the such
result, Helen. the Fihpino child, rvas gir.en a legrume .
.hrr;r;;.;.
^
Iaw of the domicile of its deceased citizen should apply. Thus, while our
Civil Code refers the matter to California law (the national law of the Note: The Supleme Cor-rrt,-s ruirng was obviously rntended
deceased), California lavr refers the matter back to us, telling us to apply to
favor the Filipino child. \x&at if no Filrpino .iur.n was
the law of the deceased's domicile, which is Philippine lavz Should the involved, tike, fo,
instance, if those Frghtrng over the estate of trre deceased
Philippine court tasked to setde the estate of the deceased accept the wire alr Californra
citizens? \ibuld our Supreme coutt have still accepted
"renvoi" and apply Philippine law, or insist that California intetnal law the .,renvoi,, and
applv Phihppine lau'?
binding on its own citizens-residents should be applied, the same being
the deceased's national law? This is the "tenvoi" problem. Therl arc actually four (4) solutions that the court
4.
can adopt when_
everit is confronted with a "renvoi" probrem like the
3. Discuss why out Supreme Court accepted the ttrenvoitt in the case. What are they?
chistensen
case of The Mattet of the Testate Estate of Edward Christensen,
Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.
(a) Wb may reiect the .,renvoi".
7 SCRA es 0e63).
This means that tl-re court d.es not want the probrem r<,,
The case teferred to above is the first case decided by our be sent
back to us. That is, as in the case of the testate or intesrate
Supreme Court which raised the "renvoi" problem. succession <-rf
a foreigner but domrciied in our countr.l; we w<;uld simplv appl1. iris
nadonal law, or the internal law of his countr\,,.
The facts of the case are: The deceased Edward Christensen
was a California citizen who had resided in the Philippines for a long time
(b) W'e may accept thc ..renvoi,,.
prior to his death; hence, a domiciliary of the Philippines. In his vdll, he
left almost his entire estate to Lucy, an acknowledged natural child in
As in the Christensen casc, our Snpreme Court accepted thc.
Califomra, and ga'l'e a small legacy to Helen, an acknorvledged narutal
referral or the transrnissio' of the casc back to us. so tirat instead
child in the Phrlippines. Under California internal law, its deceased citizen of
applying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed.
may dispose of his estate by -ill in any manner he pleases, However, berng thc
lau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..
Califotnia law also provides that where its deceased citizen tesides in par., Neu,. Civil Code). Thrs rs a case
another country, the law of his domicile should determine his succession.
of single ..r.,rol or single
transmission.
Thus, while Lucy contended that the will of the deceased should be given
effecg follou'ing California internal law, Helen insisted that Philippine law,
(c) We mal follow the theory of desistment, or tire murual_
the law of the domicile of the deceased. should be applied, under which
disclaimer of jurisdiction theory.
she is a forced heir and is entided to a legrtime.

Here, u'e refrain from applt,rng thc national Larr, of the dcccasecl
The ruling: Recognizing that there \r/ere two sets of ruies under
foretgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s
California internal iaw, one for its citizens who teside there and another tr.rc
dorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile
for its citizens 'q/ho reside in other jurisdictions, the Supreme Court held of
the deceased. So, in the end, w.e still anoh, philinnne law:
that if it should refer the matter to California lau'. said law will toss the
 rl fi
CONILICT OF LAI\| S I'HE PROBLEM OFTHE "RENVOI" 63

T 62 THEPROBLEMOFTHE"RENVOI" CONFLICT OF LAWS

ilq
l:i
(d) \Ve ma1: applv the foreign court theorv. Suprcme (-oult hcld tirat therc \\'as rt() "rcnv6i'' irere bccausc I iri
tl'rc clcccasc,ci .\r-rr's (i. Rcllis r,:rs botir a. citizer'r.blcm
rncl a tlorniciirar.r,.i lrlv

Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould 'tcras. LlS,\.
ri:i
:ii,i
do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as in
t
:,i;r:

the Christensen case) would applv Ca[fornra internal larq we would do iJ:
Tire facts: lJelLs. Iciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi'
the same. If, however, said court would applv Phriiporne 1aw, u'e would ,*r
--i&
i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irc :6'
follou,' suit. The advantage of this theorv is that regardless of forum, the *
e\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtres 'l{
appiicable lav'will be the same. But rt can also result in internauonal 'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his
in properties ft
ptngpong if we do what the Califomra court would do, br.rt the California
in thc l)hihppincs. Bellis hacl sevcral illcgitimatc chilcr,rcu in thc l)hrJ.ippincs -lt
court would do what we do, erc. ,il
bgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrep
5; What is meant by t'double renvoit'?
l)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir
r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tirat
Phil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr
This occurs when the local court, rn adopung the foreign court
'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcs
theorl', dtscovers tirat the foreign court acceprs the "renvoi." But since
governing thc strcccssron rtf tts citizcns.
the foretgn law remits the case to Philippine law, being the iaw' oi tire
deceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larv
Helcl;'lirc illcgitlr-ratc cl.rilc'lrcn not cntiitrccl to atl' lcgittmc
does not accept tire remission (as it applies the national larv o[ the ^rc
bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd and
deceased), so the foreign court, sitting as a Philipprnc courr, would stdl
t'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arc
appl,v rts own rnternal lav": This is then rvirat our court will applr'.
no compulson- ircirs and no lcgttimcs.

6. Vhat about the theory of "transmission"? Is it the same as ttrenvoitt?
Thev are not the same becausc u'hile "renvoi" invoh'es two laws,
transmrssion actually involves three larvs.
"'lransmission" is the proccss oi applvrng thc larr,'
of a forergn
state thru the law of a second foreign state.
r\s ior thc oppositors'aLgttttrcnts that sit-rcc thc deccascd
cxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc
()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc
deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs,
thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr
provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnes
shall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct'
u'rtl-r hrs nlttional larv rs illcgal atrd votd.

Example: A Chinese citizen domiciled in the Philippines, dies in

Engiand leaving some properties there. The English court u/ill thus have
to setde said estate, and folloudng the domiciliar'' theory, it refers the'
matter to the law of the domicile of the deceased, which is Philippine
lavz But Philippine law, following the nationaiity theory transmis the mattet
to Chinese law, the national law of the deceased. Hence, the English court
will ultimately follow Chinese lauz
7. What is the case of Testate Estate of Amos G. Bellis o. Edward
A. Bellis,20 SCRA 3r9 (1968)? Did it involve the "renvoi" problem?
Although the "renvoi" doctrine was invoked in this case, our
8.All in all, in the absence of definitivc laws on the matter, how
should we resolvc the "renvoi" problem in the Plrilippines?
'lb quote thc late.|usttcc Irtlsardo 1,. Parasl
" x -s -r it is suggestccl tiraf tl-rc thcon llc aci<>ptcd rvhich'
c<,,trsiclcr:l'rg tirc ctrclttnst.lltc(s ('i a gtvcl] sltuztti()n, rvill bcst
rcsuit in ihtlncss, ccluitr'. anci lusticc. ir<.lr'instauce. itl thc casc of
long tin-re d<-,rnici[alres oi- tire l)irihplttucs. il urat' sccm desil'ab1c
to presulne that thcv trttcndcd to dic rvrth l)hilpprne tutcrtral lat'
tallng carc of tire distribntiou of their estatc in tlrc Philipprncs;
 CONFLICT OF LAWS CONFLICT OF LAWS
64 THEPROBLEMOFTHE"RENVOI"

T hence. it wouid be better to accePt the

"renvoi" (sirrgle rcnvoi or
srngie remission). ln ali otl-rer instances.
to rejcct tire
..renvoi',
"
to be ti're tnore iestrabie soluuon (Paras' id'' p'
...,,irld u..rrr
217'i.

CHAPTER

CONFLICTS RULES ON
STATUS AND CAPACITY
1. Considering that one's status starts with the beginning of his
personalitl', when does human personalitv begin under our law?

Art. .10, Net'Ciril C-oclc. proricles

"B.i.r'tlr cletemuncs persc,naltttr but the conccivcd

chilcl shall be considcrcd bom lor all purposes that ar('
iavorable to rt, prouf,ed it be bor n later u,rd.r drc cr;ndrnons
specified tn ti.re follow'rng arttcle."

rvhrlc tire succeeding .\r:t. :t1 provides:

"Fc-rr cn'il purposes. tire fetus is considered born

i[ it is alive at the tlme rt is completelv delivered from
the' rnother's v'otnb. I-los'ever, ii thc Fetus had 'an
intra-uterinc lttc of less than scvcn months. it is n<-,t
decrncd born i[ it drcs *'ithin nvrinn'-four hr>urs aftcr'
its corrrplete cle[r'crt' frorn thc ntaternal rvomb."

in rrthcr words. personaltn- reallt' begurs at c()nceplion, subject

to tl-re follorving conditions:
 CONFLICl OF LAWS CONFLICT OF LAWS CONFLICTS RULES ON STATUS AND CAPACITY
ON STATUS AND CAPACIT\
67
66 CONTLTCTS RULES

(a)ThcPlrrPoseisfavorabletotilefenrst'Llielirtistrvc:na the bus company due to an injury to the fetus if a pregnant

srmpie donauon or is considercd
an ireu'of the larent): rnci woman who is a passenger in a bus suffers an abortion as a
6) Il lr ts boru aiive uncict. .\rt' 'll of the Neu Crtrl result of an accident due to the negligence of the bus driver?
' (-t>dc.
For pecunian'damages on account of injurr. to or the deatl.r of
Youth\\'eliate Code)
In fact. Art. 5 oi PD 603 (The Child and the unborn cl-rild, no. bccause the feus did not ver havc civil personalin.
ls lrlore precise u'heu it
provides that - and an1' cause of action that accrued to tire unborn chiid was exrin-
guished bv its pre-natal death. But For moral damirges suffered bv tire
..Tl-rectr.r]personalinoitheclrildslrll]crlmmerrcefrotn parents for the illegal arrest of the normal developmcnt of the fetus and
t]rennreofl-risconception,forallpr-rtptlsesfar'orablet<llrim. on account of the drstress and anguisl.r attendant to its loss and the
subiectt()thefcquirementstlf,\rtrclc.lloftlre(]ivilCode.'' disappointment of theu parental expectations, ves. (Ceiuit. C.-4., 2 SCk,1
88'te6/)
Depenclingontl-reconditionsrlfitsbirtlr.thcrcale.tlrereforc'
rwo ktnds oi children: 4. S7hen is civil personality extinguished?

ordinarv- rvithan intra utcrinc l-rtt oI at least 7 monti'rs,

scr
(a) According to Art. 42 of the New Civil Code, "civil personaliqv
ts exti.nguished by death."
drataslongastlrcclrildrsaliveupor-rconrpietcscparattorrfrt;mtlrcmodrer,.s
rvotnb, rt i.s aiteadv u'rtl-r crvil personahn-'
Death in ti.ris article means "plrvsical death". not civil rnterdicuon
(b)Extraordirrary_rr,ltlranintra-ttterinclrfeoflesstiranT which rs sometimes regarded as "crvil death", and rvhich merelv restricts,
f<rr: at least t-l hours aiter completc
months, in u'hich case lt must livc not extinguishes, capacity to act (Art. 38 Neu'Civil Code). A declaration
j.U.'"r, from ti-tc trother's r'vomb bctore it is consrtlcled born and to of death in accordance with one's personal law (whether his national iaw
havc acclutrccl civil perst-'nahti'' or the lav' of his domicile) bv a court of compctent ;unsdrction rs
consrdered valid for all purposes.
fettls nuv be:
l)urpeses bcneficial or lavorablc to tl'rc
(a) It r-r-ral ahcadrt be givcn a stmlrlc ti()n^Bor1: 5. What is meant bv t'absence", and under what law may one be
p';r,,1ln\'alreadr.beacktrtlrvlcdgedl>r.tlreihtjlcrevenbeft>rc declared as such?
birtl-r (Da [cru.t t. St'attitr'
i8 Phtl 866:
(c) it is alreadr'r:ntrticd to bc sr-rPpor:ted c\rcr'l $-htle still rn thc "Absence" is considered a special legal status pertaining in the
Philippine iaw to a person rvho has disappeared from his domicile, his
u'cxlb of the tnother;
(d) lt can alreaclv be an hcrr' whereabouts being unknown, witl.rout leaving an agent to administer his
properrv-, or even if he had left an agent, the power conferred b)' tlt"
absentee on the agent Lras expired (r\rt. 381, New Civil Code).
2'InConflictofLa\t,s,whatla.lr'determinesthebeginningof
one's personalilv?
One's status of being absent is determined in accordance u'ith
His personal laur if ]re rs a citizcl-r oi a coutrtrt
tl-rat follor"'s tlrc his personal larv (u'htch mav be his national iau' or the law of his domr-

nadonahn t[.,,rt. iris natjonal las'

(like thc 1)hil-rppincs) lf hc ts a citlzer.r cile), and jurisdiction to declare him as such also belongs to the countr\,
Follorvs tl-re domicihar| the<-,r\. tl-re la\l of hrs domicile' of .x'hich he is a national or a dornici[art', as the case tnlrr' be. Hou'evcr,
.,i o .nur]tr.-thlt
our own courts also har.e iurisdrction to declare an alien domicilian'in the

3. Considering that civil personality begins at conception'

Phdrppines as absent (ike when a Fihpino wife asks a local court to
from declare her al-ien husband an absentee) under the conditions laid dou,n
may the pare;rc of the unborn child recover damages
 CONFLICTOFLAWS CONFLICTS RULES ON STATUS AND CAPACITY
.iA CONFLICTS RULES ON STATUS AND CAPACTT\ CONFLICT OF LAWS 69

T lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\.
l)lti/. 3 1'1
lf death under Art. 391 of the Nev- Civil Code. an
vears is enough (e/.).
absence of rwo (2)

6. [Jnder what conditions mav a person be declared an absentee In either case. a summarv ptoceeding fot the deciaration of the
under Philippine lawrand what are the legal effects of such declaration? presumptive death of the absent spouse under Arl 42 of the Fam_il1
Code is necessary.
(a) \\'ithrn rwo (2; veats aftcl a person\ drsappearance without
leaving an agent to administer his propertv, or having left an agent. the (b) For all other purposes except succession, an absence of
power of the latter had expired, any intcrested person. relativc. or lriend seven fl) years, it being unknown whether or not the absentee still lives, is
may ask tire competent court to appoint a person to represent the absentee necessary (Art, 390, New Civil Code).
in all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Present
spouse is, however, preferred in the apporntment when there is no legal The procedure is found in Rule 107 of the Revised Rules of
separatron (Art. 383). Court.

(b) After the lapse oirwo (2) vears wlthout anl: news about the (c) For the purpose of succession, an absence of ten (10)
absentee or since the receipt ol the last nelvs, and frve (5) years if the vears is required, except if the absentee disappeared after the age of
absentee iras left an administrator of his properry'his absence mav be seventy-five P5) yeats, in which case an absence of five (5) years is enough
declared (Art. 38-1, id). to open his succession (fut. 390).

\Who may ask for the declatation of onets absence? The procedute is again Rule 107 of the Revised Rules of Court.

.\nv of the Follorvns: 9. In what cases would an absence of four (4) years be enough for
(a) The present spolrse; a declaration of presumption of death because of danger of death
(b) The heirs insututed in tl.re will of the abscntee. rviro mat (otherwise known as .(extraordinary absence)?
present an authentjc copv of said will;
(c) 'fhe intestatc heirs,
if the absentec le ft no rvill; According to Art. 391, New Civil Code, the following shall be
(d) Those w-ho rnay have over the propert-r' of tl.re absentee presumed dead fot all purposes, rrcluding the division of the dstate
some right subordinated to the condrtion oFhis death. (Art. among the heirs:
385. rd.)
(a) A persoa on board a vessel lost during a sea voyage, or an
The procedure for dre declaratron of one's absence is found in aeroplane which is rnissing, who had flot been heard of for four (4) years
Rule 107 oftl-re Revised Rules of Court. Horvever, "thc iudrcial declaration silce the loss of the vessel ot aeroplane;
of absence shall not take e ffect until 6 n.ronths after the publication in a
newspaper of general circulation" (ALt. 386. td.). (b) A person in the armed fotces who has taken part in war, and
has been missing for four (4) veats;
8. When may the absentee be presumed dead, and forwhat puqposes?
(c) A person who has been in danget of death under other
For the purpose of remarriage. tire absentee mav 16 presumed
(a) circumstances Qike earthquake, volcanic eruption, landslide, fte, dangerous
dead after four (4) J'ears of absence. the present spouse having a well- expediuons, etc.).
founded belief that the absentee is alreadv dead (Art. {0 Familv Code).
Rernernbeq thougta that for the pqpose of rernardage, extaordinary
However, in case of disappearancc whcrc t[Tere is danger of absence of two (2) .vears is enough (Art. 40, Family Code).
 CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES ON STATUS AND CAPACITY 7',
STATUS AND CAPACITY
N CONFLICTS RULES ON

in Conflict of Laws? their national law), as well as the extrinsic and intrinsic vaiidiw of the
10. Vhat determines one's age of maiority donation. the subject-matter of the donation being located in Fiori<ia.
status' it is the personal law
Since age is part of one's personal
.r""uo"^t law or the law of the domicile) of
a person that
(whether tt. Former Senator Salonga, however, mendons some criticisms
vrhether he has reached the age of maioritv or not'
i.,.r-t., leveled by U.S. and former Soviet Union authorities to the use of one,s
law? personal law (whether his national law or domiciliary law) to determine
11. What is the age of maiority undet Philippine
his capacity to enter into business transactions with foreign elements, in
13' 1989' amended that "it would be nothing less than outright infringement of the reasonable
Republic Act. No' 6809, approved December
of maiority to 18 years expectations of the contacting parties, and would result in erecting a
htt.234 of ,n. f"-ity Code by reducing the age
law in special cases' But the age formidable barder to intemational trade and intercourse". For every person
r"* ,ft. excepdons esiablished by existing
under the same "who entets into a transacnon with a foreign nadonal or domrcijiarlwould
of contacting marriage without parental consent has'
of twenry-one then be compelled to gauge the capacity of the lattet by refetdng to the
law, remained at the age
unfamfiar law of some foreign country". (Salonga, Private Internationai
Note that also under the same Rep' Act No' 6809' thc responsi- Law, 1995 ed., p. 250).
and guardians' for
bility of parents (if the children live in theit company)
of age' How' indee4 can we subject a foreigner who enters into a business
tt. tort, committed by their chiidren and 'watds below 21 years
contact with a Ffipino in the Phrlippines but who has no capacity to
hasbeenfetained.TheresultisthatsuchParentsandguardiansarestill
(as to patents) and contract under his personal la$/, to Philippine lavr and hold him liable
responsible for the damages caused by thel childten
even ifthe chdd is above 18 years ofage (the aqe under the transaction, unless in determining his capacity to contract we
*.rd, 1", to guardians)
-but apply the lex loci contractt$ which is Philippine lawl Thus, foliowing the
below 21 yeats of age' The defect of the provision
is
of maiority)
practice in American courts, Senator Salonga suggests that Art. 15 of the
respect to guardians of minor chil&en, because if
the chil&en are
with
18, they do not need guardians anymore' unless they
are Civil Code applyrng the nationality theory be hmited to strictly familv and
already
"Uor.. domestic transactions, wh-ile the law goveming the contract should govem
under some other drsabiJrtY'
ordinary day-to-day business contracts (id., p. 256). An example is the
is our conflicts rules on capacity to contract? early decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236
12. $7hat
(909), where said Court applied Phitippine law, being the law of the
place where the contract was to be perforrned, and not the national law
In counuies that follow the nationality theory like the Plulippines'
the capacity to contract of a person is governed by his
national law and of the defend^nt, ai Illinois citizen, in determining his capacity to enter
countries like the U'S' and Great into a contractwith the Philipptre Government to work here as a stenographer.
follovrs him vrherever he goes, while irr
Britain that follow the domrcil-iary theor,v, one's capacity to conttact ls
governed by the iaw of his domicile' In other words, a petson's capacity ti.What about the use of names and surnames, which is also part
."o .o.,o,.. is governed by his petsonal law, whether
it is the lex nationalii of onets status? What is the law on the matter?
of the lex danicitii.
The exception in the Philippines ate contracts involving real
ot Traditionally, a. person's name was not regarded as part of his
sitae applies includrng status because he could change his name at wiil, but our law nov'
personal properry;in which cases the lex titu or hx rei
(Art' 15, New Civil Code)' provides that "no person can change his name ot sumame u,ithout judicial
ifr. .up".i.y of the contractrrg panles
authority" (Art.376, New Civil Code), and the procedute for the change
For example, a Filipino who owns a' piece of property rn Fiorida' of one's name is Rule 103 of the Revised Rules of Court. As held in
in the Phillppines' REublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change of
USA, wants to donate sard property to another Filipino
name is a special proceeding to establish the stalus of a person involvrng
Forthedonationtob.,r"lid,therespectivecapacitiesofdonorand
law' which is his relation with others, that is, his legal position in, ot with regard to, the
donee shalt be govetned by Florida law (not by PhiJippine
 CONTLICTOF LAWS CONFLI
N CONFLICTS RULES ON STATUS AND CAPACITY CONFLICT OF LAWS TS RULES ON STATUS AND CAPACITY 79

order of nobility that they possess (Sec. 17, Revised

rest of the cornmunih'." Naturalization Lau)
In fact, our Constiturion (the 1935,1973. and i9g7)
d;.;;;,;;;;;.
Even ahens can ask for change oi name rn the Phiiipprnes, of rovalry or nobilin:
provided they are domrciled here. In other u'ords, the starus. of an ahen
is governed bv the lex rionirillii ot the law of lus domicil e (Ong Haan Tin u.
15. Distinguish legislative from iudiciar
iurisdiction over one,s
fup., L-20997, Apil 27, 196\. But an alen whose citizenship is either status.
conroverted or doubtfr:i cannot ask for a change of name under Rule
Legislauve jurisdicdon over one's status is ihe power
1,03 (Baws u. Rep., L-23595, Feb. 20, 196q. of his
personal law to govern his status wherever he goes, iHt.
jurisdiction is the power of the courts to decide questions ,rral.i"t
As for Philippine substantive law on tJre use of names and or controversies
sutnames, Atts. 364 to 375, New Civil Code, iay down the ruies on the concerning one's stanrs.
use of sutnames by legrtimate, Iegitimated, adopted, and illegitimate
chjldren; married women as well as women whose marriages had been Thus, our coutts can decide cases invorving the status and capacity
annulled or who are legally sepatated from their husbands; widows; and of foreigners brought before them, but in doing so, our courts
will appl1,
in case of identity of names and surnames between ascendants and the personal law of the foreigner, whether it be his national I"- oi th.
descendants. law of his domicile, depending on whar theory the country of his
citizenship follows.
All children conceived and bom outside a valid marc:nge arc
considered by the Family Code as illeg:timate (Art. 165), whether the For example, even if the personal law of the foreigner aliows
child is an acknowiedged natural child or a natural child by iegal fiction as divorce, he cannot apply for divorce from his spouse before a Pt itipp;n.
defined by the New Cir'il Code or spurious, and they are all required to court because we do not recognize divorce and our ao,rrt, hurra ,ro
use the surname of the mother under the Family Code (Art. 176). jutisdiction to grant divorces. However, a foreigner who applies
for legal
Howevet, the new Republic Act No. 9255, amendrng Art. 176 of the separation in our country on a gtound available under his nauonal ilu,
Family Code, now allows iliegitimate children to use the surname of the but not under our law, may obtain a favorable judgment from our courts,
father "iftheir fiIiation has been expressly recognized by the father through because it is his national law on legal separatio., th"t o*.o,rrts
will appll:
the record of birth appearing in the civil register, or when an admission but subject to our procedural lavr.
rn a public document or pdvate handwritten instrument is made by the
father" during the latter's iifetime.

Regarding Filipino women who have been divorced by their

alien husbands under fut. 26 of the Family Code, the rule on v/omen
whose marriages had been annulled should iogrcally be applied to them
(See Art. 371, New Civil Code).

14. May foteigners with titles of nobility continue using said titles
in the Philippines?

The right to use a title of nobiliw depends upon the national lav'
of the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Such
persons may condnue using thet titles of nobility in our country, but if
they apply for nattrafization, they must renounce any hereditary tide or
r"
CONFI"ICT OF LAWS
CONFLICTOFLAWS CONFLICTSRULESOFMARRIAGE 75

of the contracting parties who must be maie and female; and (2) consent
freely given in the ptesence of the soiemmzing officer (Art. 2). While the
formal requisites are:

(1) Authority of the solemnizing officer;

(2) A valid marriage [cense except in the cases ptovided for in
Chaptet 2 of Tide I; and
(3) A marriage ceremony which takes place with the appearance
CHAPTER of the contracting parties before the solemnizing officer and their

M
personal deciaration that they take each othet as husband and wife in
the presence of not less than two witnesses of legal age. (Art. 3, id.)

Like the absence of any of the essential requisites, the absence of

any formai requisite shall also rendet the mardage void ab initio, except as
stated in Article 35 Q), but an irtegul^rity i" the formal requisites shall not
CONFLICTS RULES ON MARRIAGE affect the validity of the mariage; the party or parties tesponsible for the
irregularity will however, be civilly, criminally, and administratively liable
A. MARRIAGE AS A CONTRACT (Art.4. id.).
with marriage as The above formal requisites apply also to foteigners who get
t. \Vhy do conflicts problems arise in connection married in the Philippines. If one or both of the parties are foreigners,
a contract? the foreigner must submit a certificate of legal capacity to contract
coulltrles or states' marriage issued by the diplomatic or consular officials of hrs/her country
Such problems arise because different
have different in the Philippines before he/she can be issued a marriage license; while
on ,h.t'pubhc pohct', culture' or code of
moralifi"
depending
stateless persons or refugees need only to submit an affidavit stating the
la.r,s in determining Ot. *Uatf oF marriage as a conuact' Consequendy'
is errrbodied in Art' 1 oF the circumstances showing such capacity to contact marriage (Art. 21, id.).
whiie our pollcv aird concept of 't'^'riage
Famil1' Code, therc n" ceiebiated in otl.rer countries that do
'''n':'iug"t of marriage' vet to den-1' them Considering the above formal requisites of a valid mardage in the
,rot .o.rforln to our idea nndlo"ttpt
rhe status of children' the Philipprres, a conunon iaw marriage between Ffipinos in this country is
validin'vzould create ver-v serious p'otl"'rrt in
spotlsts' the authoriry and rights void (Enriqueqa. Ennque4 8 Phil565; Eugenio u. Wb4 185 SCLA 42r.
pcrsonal and propert\' t"louottt o[ tht
rigirts of
if por.rr,, towards their cirildren aod uirv uenia, trle respecrive
o[ their familr" etc' As to common Iaw marriages of foreigners who come to the
succession of the spouses and the members
Philippines as husband and wife, it would seem tlrat we should consider
applv rn such
Thus, rve should know what rules or laws to the marriage valid if valid under their national law or the law of the place
vfrere the relationship began. This is to avoid injustice to the parties as
conflicts problems.
well as thek chil&en, considering the different conceptions of marriage
2. \flhat is Philippine intetnal law on the
formal validity of in foteign jurisdictions. But the mardage must not be contra bonot mores or
contract?
marriages, or the validity of marriage as a ' .universally
considered incestuous.

The Familv Code presctibes essential as rvell as i:.tT^l requlsltes 3. What about foreign marriages of Fitipinos? Are they valid?
fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},
Under Art. 26 of the Family Code, "all martiages outside the
 CONFLICT OI LAWS CONFLICTOF LAWS
76 CONFLTCTS RULES OF MARRIAGE CONFLICTS RULES OF IUARRIAGE 7'

phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev i.e., marriages between ascendants and descendants. and broti-rers and
u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv. sisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamous
except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and rnarriages rn Chrisuan countries thar prohibrt such marnagesT.
38"
(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprne
In other words. we follo"v tire rule of ux iot'i rciebrationt.r: rf vaLd internal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tire
in the countn' of celebrauon. tl-re n-rarriage rs also valid tn the Pl-rihpprnes. pla.ce where the proxy particrpates in the marriage ceremoo)., thev are
except tir<-rse enumeratecl in sard Art. 26. entitled to recognition at least insofar as the fonnal valditv of the
marriage is concemed. This rule is intended to protect the wife and chii&en
But, a for:eign marriage of Filipinos in a foreign countrv rvill stiil (Salonga. supra, p. 266).
be toid in tire Philippincs if:
(3) As to rnarriages on board a vessel on the high seas, since tl:e
(l) Either or botir parties did not havc the legal capacirv to gct country whose flag the ship is flving has juusdrctron over the ship, the rule
. rrrarried 1Art. :5 {l}); is that compliance with the iaw of tire said countrf is recluired for tiie
2) The marriage rs irnmoral for being bigamous or poiygamou marrlage to be valid. In the LI.S. where each state has irs own law- on
(Art. 35 {a}) marriage, the lav' of tire domicrle of the ship owner governs (Salonga.
(3) Consent of one partl is lackrng because of mistake as to the supra, p. 267).
identttv of tl-re other (Art. 35{5}).
(-l) Onc of tire parties was psvchologrcall,v incapacitated at thc (4) IF the parties or at ieast the husband is a lvluslim (s'hose
tirne oi the rnarriage to cornpll rvith the essenual marital religton allows piural malriages), it is beheved that we would recognize
obligations (Art. 36); up to four marriages of dre same irusband (as recognizcd by the PhrJrppine
(5) Tlie marnage is incestuous (Art. 37); ot Muslim Code on Personal Laws) to protect the rights of the wives and
(6) The marriagc is vord bl reason of pubhc pohcy (Art. 38). children.

Consular rnrrriagcs of Fiirpinos abroad are rahd. As provided 5. What about marriages between a Filipino and a foreigner abroad,
in -'\rt. 1i) of thc Famih'Codc: i.e, a, mixed martiage?

"Marriages between Frhprno crtjzens abroad may If the rnarriage rs valid under the law of one of the spouses
be solcmrizcd bv a consul-general, consul or r,ice-consul rvhiie void under the law of the other. r'c should uphold the validrn' of
<-rf the Republic of tire Phiirppines. Thc issuance of the the marriage, uniess thc martiage is universallv tncestuous or liighh
marriage [ccnse and tl-re dr.rues of the iocal crvil reglstrar immoral (the same rule as to foreigners rvho get rnarried abroad).
and of thc solemnizing oftlcer rvith regard to the
celebrirtior-r of m:rrnage shall be perfonnccl bi' said For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua.
consr.rlar otfrcial." where the marriage is valid, If the parties are both FrJrpinos, said martiage
wouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code)
4. Vhat are the conflicts rules on marriages between foreigners But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil.
solenrnized abroad? we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<,
the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a
0) \\c sn}1 applv dre r:ule of
nlehaliolr, but not the excepdons
lex lo,t forergn shore and is not bv itsclf immoral or univers2ill: 1n6srgu6ss.
rn the flrst par. r.,f Art. 2(r oi rvhich appll onlv to
tire Fami11' Code. Indeed, Art. 149 of the Famrh-Code provides that "ti-re familr,. berns thc
FiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl foundation oI the nation, is a basic social institutjon rvhich pubhc policv
 CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 79 i
CONFLICT OF LAWS Iil
7E CONFLICTSRULESOFMARRIACE
As a general rule, the personal reiations of the spouses are r

cherishes and Protects " go'erned bv the national law of the husband. Reason for this is because
'urhen a woman marries a foreigner, she usuallv loses het nationaliry and
6. What about a mixed marriage in the Philippines; i'e',
one be- instead foilows that of the husband. Another reason is that the husband is
tween a FiliPino and a foreigner? usuaily the head of the famrly, so that the husband's personal iaw governs
the personal relations of the spouses.
It the FrLpmo -that is. PhiLppine
is believed that the national law of
law- should be followed; otherwise, our public policy would be violated. In the Philippines, an alien woman who manies a FiJiprno husband
This is true both as to the extrinsic and lntrinsic validiW of the marriage. ipsofarto becomes a Filipino citizen if she does not suffer under any
Thus. a Frhpioo cannot marfi' his or her American frst cousin in the disqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a.
PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thev Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held in
cznnot also marrv without a marriage license, unless the mardage is one Djananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Court
exempt from such [cense. ruled that "rnauiage of an alien woman to a Filipino husband does not
tpto faao make her a Filipino citizen and does not excuse her from her
failure to depart from the country upon the expiration of her extended
B. MARRIAGE AS A STATUS stay hete as an alien".

1. What are the two aspects of marriage as a status?
Marnage as a stalus carries with 1t mplications in rwo aspects:
the aspect of personal rights and obiigations of the spouses, and the
aspect of their properry relations. As to the first asPect! the rights and
obligations of the spouses are purelv personal to them and are not
ordinarily interlered with bv the courts. As to the aspect of the properq''
relations of the spouses, the law lavs down certain ruies and ludicial
sanctions, as thef mav afFect public interest'
2. What law governs the personal relations of the spouses in
Conflict of Laws?
personal ;:elations of the sPouses are
In the Philippines,
governed by Philippine law since we follow the nationahtv theon (Art'
15, New Civil Code). Other countries that foliow the natlonali* theo{'
aiso apply tl-re spouses'nadonal iar.v in determining their personal reiations
to each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl,
theorl', the personal reiations of the spouses are governed bv the iaw of
theit domicile.
3.Suppose the spouses are of different nationalities, what law will
govern theit personal relations, the law of the husband or the law
of the wife?
As for a Filipina who maffies an alien husband, our Constitution
provides that she "shall retain her Philippine citizenship, unless by het act
or omission, she is deemed, undet the larg to have renounced her citizenship".
What law, then, should govern the personal telations of a Filipino
wife, who retains her Philippine citizenship, and her alien husband?
By p*ity of reasoning with Art. 80 of the Family Code on the
property relations of husband and wife, which provision has abandoned
fut. 124 of the New Civil Code providrng that the national law of the
husband shall applv to the property telations of spouses of different
nationaiities, it will be the national iavr of the wife or Philippine law, that
would govern the spouses'personal reiations. This change of rdle was
intended by the framers of the Family Code to protect the Filipino wrfe
(because in many cases of mixed mariages, it is the rrtrfe who is the
Filipino) ftom the harshness or sttictness of the personal law of the al-ien
husband, thus depriving her of her basic, fundamental rights. Many alien
husbands have divotced their Filipino u'ives under their petsonal laws.
This should not, however, preclude the wives from claiming the rights
due them under Philippine law as such wives of their alien husbands, like
the rights to support, to the custody of thet minor children, as heir of
the husband, and in the division of the properties acquired dwing the
marriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,
1e86)
 CONFLICT OF LAWS CONFLTCT OF LAWS CONFLICTSRUL6SO[ MARRIACE
80 CONFLICTS RULES OF MARRIACE

'I'hc- cotrrt nle\: cxclrrpt one sp()r,rse fro111

4. Supposc husband and u'ife acquire a nc\r'comrnon nationalin'?
Living u'rth the otherti ti-rc iattcl sirould hyc
Or onlv the husband changes nationalin'? Or there never was a
rbroad. or for otirer vald and compelling
cornmon nationalit\. betwecn the spouses? What lar,r'will govern
re^s()ns which sl-rould not be ittcornpatrble rvith
the personal relations of the spouses?
the sohclarin of thc' fimih' (Art 69' rd)'
(1) if rhe spouscs irrvc thc sarre niluonaLitl but thev acquite a
ncrv nationalifi' bl their cornlrtoll act. thcir nerv national lau's'ill goverlt
(3)Thcspollsesar:ciointlr'resllor-rsibleforti-reSuPP()ftofth('
famrlr- (Art. 70' id )
their pcrsonal relattons.

(2) lf thc husband alonc ciraugcs iris naticirraLty n[1st ,i.t. (a) The 1nnnagc1l1ent of the ht>usehold shnll bc the ttght rnd
rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvould dun of both sPouses ('\rt' ?f id')'
govern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in her
rights .,r'rthout rnr free erercise of chciice on her part (as provided in dre (5) \\'hen one of the spouscs neglccts his or i-rcr cllrtles tti thc
)-Iague Convention oi 1905) cr-,niugal ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'
dishonor. c-rr: to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl
ir-riui'r'
spouse n'rav appll' to the colut for reLef (Art
72' id )'
(3) ii the spolrscs retain thel' diifcrcnt nauonalities after the
rlarriage, it l'ras beet.r suggested that the national larv of both slrouses
((r) Erther sPouse mav excrosc anr lcgrtin.rate profcssion' occuPxuoo'
slrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a
busrness, or actrvitt'' wlthout the consent of the
otiler' lhc
bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc' qrouncls
nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd, latter nlav ob;ect only orl valicl' serit>tls' atlcl moral
rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' of ('\rt. 73. id';

the husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1al
rvife' rvhat
lav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\i 6. Going now to the propertv relations of husband and
rvas rvhen thev got tr-rarricd. are the conflicts rules on the matter?

For the saffIe feaso,l th;rt tlle persoual relatrons of

tire sPouscs
Some excepuons to the lbove rulc rvould bc, if tl're national lar.v
are governccl br. the personal laN of the hnsband
if tirev are of differcnt
of tl're irusband violatcs the pubhc polio' of the [otr-un, or the national relations' ot 1<'
larv of tl're t'rfc happens to be the larv of the forum. rntended as it is to natilnalties. the same rule also applies ro their ProPert\
pr()tcct the wife's rigi-rts. tlrc prt,pern l'('gllll(' that guverrrs lhctr tllrttagc'

tl-re proper.q.
in tlre ?}rilrpprnes, stnce we foilorv tlre natronalin. dleorr;,
5. Finally, what are the personal dghts and duties of husband and
reladons of thc spouses are, in the absence oF a marrrage settlcmcllt
wife under Philippine law?
bets,eeu them, governed br- Phihppine lar'"" rcgardiess
of the place of- thc
(A't. 80, Fan-rllt' Codc)
(1) The spoLlses are obiiged to iivc togethet. observe rnutual celebrarion of the rnar.r.iage and ihei-esid"nce
iove, respect and fidclitr, and render urutual help and
support (Art. 68, Fanill'Code). If tlri' spr,uses lre r-'f differcnt trrttonlhuts' h"rvcvct-'.rD,urnint'
thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptnc
-fl'ris.rvas the rntcutton ot,ttl'
(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile. ialv rvill govcrn tl-rerr pr,opctn relauons
(,ode. consrderir-rg tl-rat ln mtlst mtxed
Ilorvever, in case of disasreemcnr berlvecn them, thc court Commrttee that frarned tlre Familv
the Committee r'vanted tc'
shall decide. marriages. tt is tl.re rlrire who is the Frhpino' and
r
CONFLICTOFLAWS CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE
S2 CONFLICTSRULESOFMARRIAGE 83

prorect the v'rfe in such a mauiage bv appiying

Philippine iaw to the the srrsre'r of conjugal partnership of gai.s benveen the spouscs. the
of the spouses, whether it is the husband or the wfe Fa'rlh'code changed the svstern or tire regrme to the absolure colnmurufi:
prop"rqu relations
who $ the Filipino ciizen. This ruie thus amends Art. 124 of the New regin-re. Thr.rs. coupies wiro get married under thc Far'ih. (,ode rvho ciicl
that in mrxed mauiages between a Filipino and a not enter into
Civil Code to the effect a marnage settiement irave a regrme of absolute commumn-
foreigner, it is the law of the husband that governs the property relations of properq' benveen them. Horvc'er, rnartiages soiemruzed u'dcr thc
of the spouses. (See Minutes of meetings of Civil Code Revision Nerv Civi] Code r.vithout marriage settlements are still governed bt, said
Committee, Nov. 15, 22, and 24, 1986) Civil Code; 1.e., rirc spouses still have a conjugal partnership of galns
between thern, subject, howeveL, to the changes introduced bv the Famril,
The exceptions under Art. 80 of the Familv Code are: Code in the adminisrration and disposiuon of conjugal properties. whicl.r
have retroactive effect, without prejudice ro vested rights acquired
(l) If both sPouses are aliens, in which cases the general rule in before the Farnily Code took etfect (Art. 105, Familv Code).
Confiict of Laws will apPly; and

(2) !7ith tespect to the extrinsic validrty of contracts affecting C. ANNULMENT and DECLARATION
real properry whether situated in the Phijippines or in a foreign counttl-, OF NULLITY OF MARRIAGE
in rvhiih cases the lex situt wlll govern the formal-ities to be observed for
the contract's validrty (Art. 15, New Civil Code) 1. Distinguish annulment from declaration of nulliw of marriage.

7. Suppose the husband or the wife or both change nationalities, Annulment is thc renredv if thc mar:riage is r'oidable or annullable,
will the rules stated in the preceding question be the same? i.e., r'alid until annullcd; rvl-ulc declaration of nullitv of marriage is thc
remedy if the rnarriagc is void ab initio.
Yes, under the doctrine of immutability of matrimonial
regime of the spouses; i.e. regardless of the change of nationahry by the
Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun r,i
husband or the wife ot both, the originai Property regime that Prevailed
c<xnpe tent jurisdrctron.it has ccrtain legai effects: narnelr':
at the startof their marriage prevails. The reasons for this doctrine are:
mantal peace in the spouses' ptoperty telations is more or less guaran-
(1) lt can be crxrvalidated eithcr ll' frec cohabitation or prescription.
teed; the sPouses will not be able to preiudice creditots, who in nrm
(2) Thc s^1nc propcltr rcglrn(':rs in a valid marriagc is
cannot leopardlz.e the interests of the spouses; and even the spouses may
estabiished betrveen thc spouses.
protect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354)
(3) 'fhc chilcllcn are legidnratc if conceivcd bcfor:c thc i.c,:.. ,f
annulnrcnt.
8. Is immutability of the property regime of the spouses the same
(a) fhe marriagc car-urot be attackcd collatcralit,: i.c.. there mnst
as immutablity of the law governing said regime?
be a dccree of annultlent to sct aside the nrarriage.
No, forwhile a subsequent change of nationality by the husband (5) The rnarriaEe can n() longer be impugncd after the death of
or the wife or both does not change or affect the otiginal ProPerty the spouses.

regime, the law that creates and governs said regime may change'
However, maffiages solemnized before the neur law takes effect are still On the othcr l-rar-rd. sincc a void r-narnagc is absoiirtch incristcnt.
governed by the old laur
(l) It cannor bc contalld;rtctl.
A good example is the change that the Famil;' Code introduced (2) The onlv propcrtl' rclationshrp bctwccn thc parties is a

in the prcperw relations of the spouses. Whiie the New Gvil Code established co-ownership (see Arts. 147-1.lti, Fanril' (,ode).
 \
CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES OF MARRIAGE
64
l'i CONFLICTSRULESOFMARRIAGE

(3)'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of votcl Tl-re above article also protects tl-re spouse who behe'cs that
his
(-oclc or her marriage rs null and void fr'm being crrarged rvitir brgamv
mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii'' if he or
she marries agar'. because tirerc would alread. be a iudicral declarauon
{'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'
of the nullirr- oi l-us or her marriagc before the remarriage. And thrs
(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrclt
provision is retroactir.c.
the spouses.

Tirus. a marr{age void for lack of a marriage iicense still neecls a

Note: In Catlou l-nrr'. tl-rcrc ate oni\' nvo cxtegotles of tnrrrlagc:
judicial deciaradon of nulltrl before the patries can mary again (Repubtit t.
loid anci valid. Void mrrriages are considercd anrlullabic' such that tl-re
is callecl C.,4. and Cairo. 2j6 SCLL4 257: Doningo u. C.,,1., 226 SCk4 57e. khas
rctnech' to cleciare n ,r:r^.rinf. nuli and voicl r'rnder Canon Larv
not bc confr'rsed rvith also been held that .uvhere a party contracts a second marriage on the
annulment. Alnttlurel-lt ilr'(lanot-r l,arv shoulci'
(tlll t() void:rblc tnarriages' mere l>elief that his or her spouse is alreadv dead u'ithout fiiing n
ar)trttlurent n the civil larv whrch applies
sulnllary procceding under Art. 41 of the Farnilt' Code, the second
marriage is bigarnous and void (lr)auarro u. Domagtoy. 259 SCk'1 124.
A conttnon mistalie of nou-larwers and even some lau'r'ers and
a uratriage undcr Art' 36 of the 3. Vhat are the conflicts rules on annulment and declaration of
iudges is to call thc rernccly to nuilifi'
nullity of marriage?
Farnili 6esll (based on the psvchok>grcal incapacitt' of onc of the s1>orrses)
-lhis
is rvrong, L".nrr*., t5e *rartiaqc ''der ;\rt. 36
rs r-rr-rll and
annui'rcnt.
void (ti-ris ground having l;cetl talien bv thc l-alrrilr'('t>tlc [r<>n-r (-ailou In Conflrct of Larvs. the grounds lor annulment of marriage,
and tl.rose for the declaration of nulliry oi rnarriage, are the grounds
1.at9, anti thc rctnccll to dcclare thc rtlal-r:tagt 'ts such is cleclar';rur-rn c'tf
provided for by the lau' alleged to have been violated which, irr
nr"rlliw of rnarriagc, not attntllntcnt.
general, ts the 1r.v /aci ce/ebralionz.r' or the law of the place where tl're
the rnarriage rvas celebrated, rvith certain exceptions. Tire reason is this:
2. If the marriage is null and void or au absolute nullity, can
parties temarrv u'ithout going to court' since after all' the
Considenng drat it is thc iex iorz tv/ebratiarzi that is usually applied to determine
whether a rnarriage is valid or not, it is the same law that also determines
marriage does not exist at all?
rvhetl.rer a marriage is voidable or not, and r.vhether it is vord or not.

No. Undcr r\rt. -{0 oi t}rc Farnth'Cr>de s'hich ls I ne\\'pro\tlslol)'

"the absolute nullin, oi a prcvious mar:rirgc nril be inr'oked for purloses T'lius, if Filrpinos get married abroad, the /rx loci ce lebrationi.r rvlll
determine the Erounds for annulment (Art 2(r. Farnily Code). For
o[ rcmarringe n,-t ,i't. basis soleit of a finai judgmcrlt declartng sucli
example, two Filipinos get married in England. Let us assurne that sterihw
previous rrrarriagc void."
is a gr:ound for annuLnent of rnarriage in England. The marriage of thc
rwo Filipinos will be annullable on the ground of steriliw. even if sterilh,
MrattlrefrarnersoftlieFanrilr'Criclervat.rte.]rr.astbrilPe|Soll
is not a grour.rd fot annuLnent undcr the Farnilv Code. This is because
l1ot to assulne tirnt hts or her tnurilge is null antl void' ct'cn if such bc
the
cleclaratiou oi the nulht| oii-rrs Englrsh lawis the icx loti celebrationil.
fact, but he or she musr Frrst seek a ludrcial
or her marriage before l1latr\/ing again; otherrvise' ltis or her second
bigarnous (See LV'te.gal u' Senpio-Diy' As for declaration of nuliity of a marnage betwcen rwo Fihpinos
rnartiage will als,, be void
^.rd "'"" abroad. tlre grounds are the exceptions to tlte lax loti teiebralionit rn Art. 26
11) Sall'|+99; I'cta.ch Consuesru GSIS' )7 SCk'1 J/'i) This neu'
u'
o[ t]re Familv Code; namelyi Articies 35 (l), (1), (5), and (6);36, 31,and
provisionirrtheFarnilr,Codeabandc>rrsti-reolddecisionsoftlre
38.
Supreme Court to the effr:ct that rvhere a marriage is illegal or void from
its n() itrdicral declee ts n('ccssllt'\ to estrblislr rts inval-rdin'
perform:irtcc.
r" '\rt'ian' Phit' l03i)' as to foleigners rvi.lo get married abroad, tire exceptrons to thc
Q)e,oph u. lv4endoia. rt Pl'il. E1j; PrcDlc 100
iex ioti n/ebutiorzi would be the same as those in marrtages as a contract.
r.rarnell', rnarriages th.at are highly i66o.ai (lilie bigamous and polygamous
 CONFLICTOFLAWS
CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 87
86 CONFLICTSRULESOFMARRIAGE

tnces tuor-ts fiIarrlages'

t-rtn s) an d univelslllt werc suspended in the Phiiippines bl Gov Wevler. so that thev werc
rnarriages benveen Chris
rrever eniorced rn ti.re Phil-ipoines (Benedtcto u. Dela R"tma. J Pht/. J4.l:ruti-
oPpl)' tt'consulal nrarrlage^s:
Tire above rules do not' howe\'er' as
ti.sto t'. Jann.60 Phil.a{1
o[ tire parues'
ot iaw oi the domicile
to rvhich eithet the n^u"lli'i"*
(3) On N{arch 11, 1911 , a Divorce Law (Act 271Q was passed in
dre cir"se mart be. aPPhes'
the Phiiippines, but it recognized onlv two grounds for absolute
or
over cases for annulment divorce. adulten on the part of dre wife and concubinage on the part
4. What courts have iurisdiction
of the husband; and in either case, there tnust be a previous conviction.
declaration of nullity of mariage?
Many couples did not, therefore, apph, for dlorce under this law because
our courts have turisdrcl3n thev did not want their children to have convicts For thetr parents.
Since we follow the nauonairq' theory" rn c^ses
ij and nulliw suits in marriage
t, to take cognizance ";;;t;*t Re for:eign divorces obtained bv Filipinos duting the effectivrq'
$i rvhere the Liugants zre Filipi'nos'
of Act 2710. the Supreme Court held thtt the foreign divorces were
can also hle sr-rcir suits
ln the
vaiid only if the ground tirerefor was anv of the rwo grounds allorved
Domrciharics of tlie Pirihppines
under Act 2110 (Baretto Goniak.r a. Gon3tlet, 28 Phtl' 6,]. Thus, a foretgn
Phfippirres. divorce obtarned bv a Filipino couple on the ground of desertion on
dotntc :ile
the courts of tire parues' thc part o[ one of thern was l-reld void, being contrall' to larv or the
ln other countries' it is usuallv which has the
who have it"isdttt'o,' t';;;
t;; t"ttt' srncetl",tt 1s the placeAnother reason
fundamental pohc,v of the forum (Stkat t. Canton' 67 Phi/. 207;"4rca u.
of tl-re soouses .fauier.50 OG )5)8
inter"" i"'ilJat-t'Jt "iooo"t
,t19t4'l)
greatest
not to to"tptl tl.re perues'
*ll:'ot'
for t}-ris it u pr^<:tical one: in or<ler to
'oit to their country of nari.nalitr iust (4) During tire Japanese occupation, a law allowing absolute
domiciied i'-' o"" tntiio'' '" "*" divorce was passed (Executive Otder No 141) allowing divorce on
ftle such cases'
10 grounds. Manv Fihprno coupies took advantage of this lau' and
hle a case
Iriliplno ciflzcn or domiciliar'r'can
In the Philrppines' a sought drvorce under its provisions.
if the defendant
o[ nulliry of marrtage even
for annulrnen' o' attttJ'*on i'-"'olit the petsonal status of
tn'"' (5) Executive Order No. 141 u'as eftecuve in thrs country until
non-residt"'of tt"o.'ntrv'
Such
rs a defcndant by
can be-acqtrired over
tl-re
October 23, 1944 rvhen General Douglas N{acArthur reestablished the
the plalnuff n'-'a to' 1o'i'Acflon tlill,,lrl
pubrictuon o f ^""''*Jl'
CIil
?"' l:- c
*.. oi.o Sec 6' nerv Rule on Declarauon
! ;:f#i;X*; Cornmonwealth Govetnment, rvhich resulted in the repeal of Exec.
Order No. 1.11 and in effect revived Act No. 2710.
on Ma'v 15' 2t)03)'
Matriage which took effect
(6) Act No. 2710 was later repealed by the Neu' Civil Code,
wirich allows and recognized onlv legal separation. The draft of the
D. ABSOLUTE DIVORCE Code had provisi<-rns on divorce, but during the discussiohs over the
draft of the Code in Congress and with the strong opposrtion of the
divorce in the Philippines? Catholic populauon of the countr\'. absoiute divorce was eliminated
1' Vhat is the history of absolute
and substituted with legal separation.
during the
iarv in force tn the Philrpprnes
(1) The Siele Partidts't\e o[ Spain'
to the enacment of the
Cilrl Code (7) The Famtli'Code also does not allow absolute divorce excePt
Spanish repme and prior
neg 2[5olute divorce' that u'hrch rs validlv obtained abroad bv a foreigner from hrs or her
alloved only iegal seParauon'
Filipino spolrse capacitating hirn or her to remarry, in which case the
on divotce of the Civil Code of Sparn
Filipino spouse can also remarr) (Sec par. , Art. 26, Famih Code)
(2) Later' the provisions
 #,
88 CONFLICTSRULESOFMARRIAGE CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 89
I
E
a
s
(a) The above provisron avoids the absurd situauon of as he was no longer her husband when he filed the aforementioned case
a Fiiipino as being still marned to his or her aiien spouse, t
after theit divorce. I
aithough tire iatter is no longer marrted to the tormer. and mal
alreadv have another spouse. NOTE: It is rmponant to remember the rwo foregorng
cases of Pilapil u. Somera and Van Dorn a. Ronillo if similar cases
(b) The above provision does not applv to a divorce anse rn the funrre under the second para$aph of Art. 26 of the
obtained bi' a Filipino abroad from his or her Fihpino spouse, Family Code wluch recogruzes a divorce vahdly obtarned bv the
which divorce is void because our law does not allow drvorce alien spouse of a FiLprno citizen abroad and allows the Fdiprno to
and Filiprnos are governed bv Plr.ilippine law wherever they go
maffy
asto their starus and capacity (Art. 15, New Civii Code). ^g:n
4. What are the rules on the validity of foreign divorces obtained
(.) The above provision likewise does not applv to a
by foreignets abroad?
drvorce obtained by a married Frirprno urho v'ent to another
country', became naturalized therein. and iater drvorced his Filipino
(1) The Hague Conventron on the Recogniuon of Divorce and
spouse after his nafuralizatron, as rt mght open the door to rich
Legal Separation concluded on June 1, 1970 states that a foreign
Filipinos to obtain naturalizaflon in other countries wirich allow
divorce u'ill be recognized in the contracung states if, at the date of the
divorce, only to be able to divorce dreir Filipino spouses.
hling of the proceedings:

2, May an alien who had divorced his Filipino spouse in his home
(a) The petitioner or respondent had his or her habitual
counry come back to the Philippines and ask for legal separation residence in the state v'here the divorce was obtained;
and separation of property against his Filipino wife on the ground
(b) If both spouses were nationals of said state; or
of the latterts adultery? (c) Although the petrtroner was a national of another
country, he or she had his or her residence in the place where the
No, because a spor-rse who accuses dre other of adultery must be divorce was obtained.
an offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, the
alien had no legai standing to accuse his forrner FiLpino wife of adultery (2) In the United States, a state has the du.ry to recognize a
because their malital bond had alreadv been severed r.vhen he filed the divorce obtained in a sister state if the spouses were domiciled in the
adulterv- case and could no longer be an offended spouse (Pilapil u. Ibay latter st2te.
Somera, /74 SCk4 6tJ
":/98E).
(3) A divorce obtained in a foreign countty would be
3. Compare the above Pilapil v, Ibay-Somera case with Van Dotn recognized under the same circumstances that a divorce obtained from
u. Romillo, 139 SCRA 159 (1985). a sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.
s00-s27)
T'ire rwo cases are similan In the Van Dorn case, fuchard Upton,
the American husband of Alice Reves, and thc latter, obtained a divorce (4) In dre Phfippines, if both spouses are aliens. we recognize a

in Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later, decree of divorce obtained by them abroad if valid under tbeir
Upton came back to tire Phihppines and claimed that a business in the national law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur
name of ALce Reves was their conjugal properfir and that the latter should Supreme Court held that -
render an accounung and let hirn managc sard business. The Suprerne
Court held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhe "In as much as Mt. and Mrs. Harden are
latter from their marriage, and Upton had no legal standrng to sue Alice admittedlv citizens of the United States, their status
 LUNI.LII T (JI LAW5 CONFLIC TS RULES OF MAI{RIAGE 91
CONFLICT OF LAWS
90 CONFLTCTSRULESOFMARRIAGE
under the personal law of the husband as welr as those avaiiable u'dcr
bv the laws of the
and dissolution thereof are governed tire larv of tl-re wrtt are ali availabie grounds for granung the leeal
United States which sanction divorce'" separation. (Hague Conr.'enuon on l-esal Separation. .\rt. 8).

DTVORCE
E. LEGAL SEPARATION OR RELATIVE 4. What coufts ma)' grant legal separation? Or, in what counrrv
should the case be filed?
1. What is legal sepatation and how does
it diffet from divorce?
Jurisdicuon rn tl.re case of ahens is not assurned by the forum
(a)
the mardage and
Absolute divorce (a vinato natinoni) dissolves unless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.
the pames can marry again'
(b) In the Philipprnes, foreigners rnal ask for legal separatron
tlnm) is only separation
Legal sepamtion or relative divorce (a nerca
et
here. even if thev drd not get married in tiris countnr \X,'hat is importanr
from bed U"ta but the Parties remain married'
"--"a is that the court has iudsdiction over both parues.

2. Distinguish legal sePatation from

annulment of marriage'
(c) Most countries assume jurisdiction over cases for legal
in annul- separation on the basis of ti"re domicile oi one of the parties or thc
(a) legal separation, the marriage is not defective;
In matrimonial domrcile. The rationale for tiris nrle is tl-rat the larv of tl.rc
ment, the marriage is defective'
domicile of the parues is that u'ith v4ricir fhev are most intirnateh'
in connected (Goodnch, Conflict of Laws, 3rd ed. .395-396).
@) In legal separation' the gtounds arise after the martiage;
annulmengthegtoundsmustexistatthetimeoforbeforethecelebration 5. Is it necessarv that the cause for legal separation take place in
of the marri4ge.
this country for our courts to have jurisdiction over the case?
to each other
(c) In legal separation' the parties are still marded
is set aside and the No. There is no such requirement in the liamily Code. Again.
and cannot remarry; in annulment, the matriage what is important is that the court has iurisdicuon over the partics, and
parties can marry again'
that the procedural requirements of the Rules of Court are complied
with.

legal sepatation' the grounds ate those given by

the
(d) In It is important to empl.rasize here that Arl 99 of tl-re New Civil
concerned, inasmuch
nationailaw ot the aomiclliarv law of the parties
on the other hand' questions Code requiring that tlre peutioner must have resided in the Philipprnes
as the question is one of satus; annuiment,
genelal rule' the gtounds if ti-re cause for legal separatlon arose in a foteign countr)', has been
the very existence of that starus; so that as a
expressll'repealed by the Familv Code (,'\rt. 254) and is no longer applicable.
forannulmentarethosegivenbythelexlocicelebrationli,subiectto
certain excePtions.
6. What are the grounds for legal separation under the internal larr
of the Philippines?
3. What ate the conflcts tules on legal separation?
(1) Repeated phvsical r'iolence or grosslv abusive conduct against
(a) If the parties are of the same nationality' the grounds for legal
the petitioner, a comlnon child. or a chrld of the peutioner:
,"p"r"aior, Gor. given by their personal law (whether national law
*. (2) Phvsical violence or moral pressure to compel the petitioner
oi,h. do-t"iliary law, as the case may be)' to change religrous or politrcal afhliatron;
grounds available (3) Anempt to corrupt ot induce the petitioner. a common child,
@) If the parties arc of different nationalities, the
92 CONFLICTSRULESOFMARIUAGE CONFLICT OF LAWS
CONFLICTOFLAWS
CONFLICTSRULESOFMARRIAGE 93

or a chiid of the peuuoner to elrgage rn prostrtuuon, or connrvance rn 10. [f one of the parties in a legal separation
such corruptron or inducement: case dies during the
pendency of the case, should rhe case be dismissed
i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenr survive?
or dis it
of tnore tiran (r vears, even if pardoned;
(5) Drug addiction or habituai alcoholism of the respondent
The case should be dismissed because it is purely
(6) Contracung bv the respondent of a subsequent bigamous a personal one.
This is true even if properties are involved. po.*itiro,rt
marriagc. wirether tn the Phiiipprnes or abroad; d:.;;;;;;;
separation, there can be no effects, "
(7) Lesbianrsm or hornosexualigv o[ the respondent;
(8) Sexual infidehty or petversionl Does the offended spouse inhsril from the guilty spouse?
11.
(9) Attempt bv tl-re respondent agaurst the life of the petitioner Vhat
about the guilty spouse, does he or she inherii nom ihe irrrro"".r,
(10) Abandonment of peutioner bv respondent without justifiabie spouse?
cause for more than one vear.
(Art. 55, Familv Code) Of course the offended spouse inherits from the gr:ilty spouse
because the parties are still martied to each other.
7. What are the defenses to legal separation under Philippine
internal law? As for the guilty spouse, he or
- she is drsqualified ftom inheriting
from innocent spouse bv intestate succession, aod provisions in
tJ-'e
the
(1) Condonauon oF the offense or act complarned ofi will of the latter favorable to hrm or het are revoked by operauon
(2) Consent of the aggrieved parry to the commlssion of the act of
law (Art. 63 (4), Family Code).
ot offense cornplarned of;
(3) Connivance berween the parties in the coramlssion of the Hovrever, to disquali$, the guilty spouse from inheriting from
offense or act constiruting the grourld for legal separatron; the innocent spouse by intestate succession, the latter must Flre
Ias" of
(4) \lhere both parues harre grven ground for legal separauon; "
legal sepatation against the former. This is provided in Art. 1002,
New
(5) Collusion berween dre parties to obtain legal separation; civil code, stating that "in case of legal separation, if the surviving spouse
(6) Prcscripuon. L\rt. 56, Famill Code) gave cause for the separation, he or she shalr not have any of the
nghts
granted rn the preceding articres" (meaning the right to inherit by
inteJtate
8. Vhat is the prescriptive period for the filing of the action in the succession). But there must be a decree of legal separation as
stated in
Philippines?
Question L0 hereof.

\\tthrn tive (5) r'ears from the un.re of the occurrence of the
cause (Art. 57, Familv Code)

9. Can the wife drop the name of the husband after the decree of
legal separation?

No. because therr are still married. And this is truc wl-rether she is
t}-re guiln parn or not.

As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has been
gtanted legai separation cannot petiuon to be allowed to revert to her
marden name.
 CONFLICT OF LAWS STATUSOFCHILDREN 95
CONFLICT OF LAWS

The second paragraph of r\rt. 164. hower.er, inciudcs a special

kind of leEtimate childrenl nameh'. children conceived as a result of the
artiirciai inserunatron of the wife with tire sDerm of the husband ()r rh^1
of donor or both, provrded the children were born under the conciitrons
a
prescribed rn said Arucle

(Please see cofiunenrs on chjldren bv arnficial insemrnation

of this same author in her "Handbook on the Famrir.
CHAPTER
Code of the Philrpprnes". 1995 ed., pp 258-269).

As for the exceptions to Art. 165 of the Code definingrvho arc:

iliegJrtimate childr-en, tire excepticins refetred to are tlte chiidren born oi
void marriages under Art. 36 (r'oid because of tlie psvchologrcal
rncapacit,v of one of the spouses) and under Art. 53 (those born of tire
STATUS OF CHILDREN fust martiage of parues before sard ltrst marriage irad been ar.rnulled cx"
declared void, and who marfl' a second time without deliverrng the
A. LEGITIMACY AND ILLEGITIMACY presumptive legitirne of the chridren of their ltrst rnauiage).

of children?
1. What are the conflicts rules in determining legitimac;- 5. Vhat are the rights of legitimate and legitimated children
under Philippine law?
(a)the Parents are o[ the same nationaliq" their common
If
larv of therr dornrcile' will The rights of legttimate and legrtrmated children under Art. i 7'l
personal Ia*, whether their national 1au'or the
be applied. (I Rabei, suPra)' of the Iramrly Code are:

lau of (1) To bear the surnames of the father and the mother, in
lf rhe percnts are of different nattotraiiues' tl-Ie Pcrsonal
the fatl-rer gol'erns (Rabel. id')' conformity wrth the provisions of tire Civil Code on surnames;

theory (Art
(b) In the Phrlippines. since lve foiiow tl.re nationaLrrl (2) To receive support fron.r their Parents! their ascendants.
lau' of the Pa(ents applies' and in proper cases, their brothers and sisters, in conforrniw rvitl.r thc
15. Nerl Civrl Code)' th" common national
narional law of the father
and tf thev have diffetent naoonalioes' the provisions of this Code on support; and
goverfls.
(3) To be entrtled to the legiume and otl-rer successionai rights
under Philippine
2. Who are legitimate and illegitimate children gtanted to them by the Civil Code.
internal law?
Note: The legiume of eacl-r legitimate child rs half of the parent's
Art l(r4 of. the Familv Code defines legitimate children as
estate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'il
..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrile Code); while in intestate succession. iegrumate children inherit equallv (pcr
rilegiumatechildrenaredefinedbvtl-,..,'....drngArt.165as..children upita) v;rthout distinction as to age or sex, and even if they spnng from
conceived and born outside a valid, marrlage' xx
x unless otherwise different marriages (Art 979. id.)
provrded in this Code"
 CONFLICT OF LAWS
96 STATUSOFCHILDREN
4. \what are rhe dghts of illegitimate
children undet Philippine
laq'?
An. 176 of che Famiil Code provides that illegrumate chiidren
have the rights:
(1) To use the surname of the mother;
(2) To be under the parental authorifY of the mother;
(3) To suppott in conformir,v \\'lth this Code;
(4) To the legrtime, which is one-half of the iegtime of
legitimate child.
Remembet that under the new Rep. Act No. 9255' illegitlmate
chi-ldren may now use the sufname of the father "if ther affiliation has
been expressly recognized by the father through the recotd of birth
appearing in the civil regrster orvrhen an admission in a public document
or private handwritten instfument is made by the father" dudng the iatter's
lifetime.
5. What lawgovetns the rights and duties between parent and child?
(a) If
the child is legrtimate as determined bv the above rules,
either the common personal law of the parents, or the Personai law o[
the father if the parents are of different nationalities, governs. (R-abel, id.).
(b) if
the child is illegtdmate as determined by the above rules,
the personal law of the mother is clecisive, unless the chiid is subsequently
tecognized by the fathet, in which case the rules on legitimate childten
will be apphed (R.abel, id.).
(c) In the Philippines, agarn since we follow the nationaiity theorl',
the law of the mother governs if the child rs illegtimate. unless the child
is again tecogruzed by the father, in which case the personal law of the
fathet (whether it is the same as the mother) appiies.
6. What is meant by the doctrine of immutability of status?
This doctrine means that the status oFa child (whether legitimate
or illegttimate) is not affected by a subsequent change of nationaliw of
the parents. But the nghts and duties of patent and child, or child and
parent, would, after the parents' change of nationaliry be governed bv
the new national law of the Parents (I Rabei, id., pp. 606-607)
CONFLICT OF LAWS STATUSOFCHILDREN 97
B. LEGITIMATION
1. What are the conflicts rules on legitimation of children?
"Legrumation" is a process wherebv children vu'ho in fact were
not born rn lau'ful wedlock and should, therelore, be ordinarily considered
illegitimate children are, b,v fiction of lav' and upon compliance vrith
a certain iegal requirements, regarded b)' law as "legitimate", it being
supposed that thev were born after their parents had alreadv been validlr-
married (I Manresa 550).
In Cont-lict of Lalvs, the requisites of legrtimatron are generallv
considered those prescribed by the national lau'ofthe parents, and it the
latter have different nat-ional lav's, the national larv oF the father (I Rabel,
id., p. 575). In countnes following the doraiciliarv theory, however, the
personal law being the lau' of the domicile, the law of thc domrcile of
the parents or. in proper cases. the law of the domrcile of the father,
should govern.
2. \7hat is the internal law of the Philippines on legitimation of
children?
Our internal law on legfurnadon of children rs found in Arts. 177
to 182 of the Familv Code.
Under Art. 177, the foliowing requisites lrrust colrcur in order
that a child rnav be legitinrated:
(r) The chiid was cotrceived and bom outside lawful rvedlocli.
(b) The parents. at the time of the child'-s conception. rvcrc
not dtsqualified by anf impediment to lnarrv each other.
Note: 'fhe addrtional requirement under Art. 270 of the Ncrv
Civil Code tlrat the parents must have acknowledged dre child first be-
fore or after theil rnarriage, is no ionger necessary under the Familv Codc,
because this Code has deletcd recogrrition ofnatural children and alreadv
conFers on legrtimate and illegitimatc children their status at the moment
of btth. Chtldren that fali under Art. 177 of the Family Code are, there-
fore, ip.ro -farto legitimated upon the subsequent marriage of the parents
no matter how lonE a period of ume has elapsed from tl-re birtl'r of said
children to the time oF the matnage of tI-reir parents.
(See also comments by this samc author on Arts. 177 tr,r
 CONFLICT OF LAWS CONFLICT OF LAWS STATUSOFCHILDREN 99
98 STATUS OF CHILDI(Li\

I82 of the Farnih' Code in her "Handbook on tl.re Famtlr, bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng non-
Code of thc Phiirppmes"; resident aliens u'ho were aiiou'ed to adopt under pD 6L)3.

3. If the personal la'.r' of the parents, or of the father in proper
cases, changes, is the legitimation of the child affected?
No, because legirlnauon crextes a permanent starus of tire child,
so this starus is irnn.rutable. However. the rights and duties of parents and
legitrmated children tlav be modified b,v a change of the personal law of
thc parents or of the f:rthcr. as the case rnal be.
The immutabhw of the status o[ a legrumated child is verv clear
under Art 180 of the Family Codc which provides tirat "the effects of
legitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178
provides tirat "the annulment of a vordable marriage shall not affect the
legrumauon".
4. What are the rights of legitimated children under Philippine
lau'?
(c) Subsequenth: ali the provisions of PD 603 and E.recurive
Order No. 91 on substanttve marters were repealed bv'fitle \rII of the
Familv Code. Certain procedutal provisions of IrD 603 on adoption
(Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code.
Under the Famil,v Code. aliens v!'ere not allowed to adopt in tirc
PhrJrpprnes anvmore except those reterred to rn Art. 18.+ (3) thereof. and
non-resident a[ens were allowed to adopt FiLpino children oniv under
the iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa.
signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.re
adoptlon proceedings are to be heid in tire home countrv of the adopters.
(d) StlX later. on Februarv 25, 1988, former Pres. Ramos signed
Republic Act No. 8552, other-wise known as the "Domestic Adoptron
Act of 1998", amending manr provisions of the Famill'Code on
domestic adoption.

T'hev have dre same rights as legltrmate chrldren (Art. 179), namelv: 2. State the concept and tationale of adoption.

(1) Ib bear the surname o[ theu tather and mother; (a)

'fhe old definiuon oi adoptron in rhe Particlar is that it is "thc
(2) 'Io receive support ftom their parents, ascendants, and in act rvherebv one person is received as the offspring of another although
proper cases, their brothers and sisters; and he is not sucir bv natuLe".
(3) To the legidme and other successional nghts granted bl
las' ro r legiumate child. This dehnitron was based on the theorv that adoption is mainlr,
for the benefit of the adopter, so that those who have no children or
Note: In De lot Santo s u. I-ztiano, 60 Phil. J28, ttwas held that the have lost them. may have tire solace and joJ's of parenthood. and ti-rat thc
legitimated daughter of a man can inherit from the man's brorher as a void whicli exists in childless homes ma1, $6 frlled (\'nigo a. IkPablic, 95
legitrmate niece. Phi/. 241).

C. ADOPTION of adoptron has, howevet, changed, and it rs

1. What are the sources of the Philippine law on adoption?
(a) Before the Family Code took effect on August 3, 1988, our
las'on adopuon vas PD 603 (the Child and )buth \ielfare Code), which
erpresslv repealed all the provisions oi tl-re Nerr,' Civil Code on adoption.
(b) PD 603 was later amended br,Execudve Order No. 91 signed
@) The ratronale
now considered more for the beneltt of the child than for the adopter,
and pursuant to this modern trend, it has been held that adoption does
not merely establish a relationshlp of paternity and hliauon but is also an
act wirrch endows the chrld with legrtimate status (Pranick t Ref>ublir' 98
Phit.66r.
'Adopuon is thus given a sociai and morai purposel that is. to
e stend to the orphan or to the child of the indigent, the incapacitated ol
 CONFLICT OF LAWS
lOO STATUSOFCHILDREN
of socrew in tlre person of
the sick. the protectton the adopter" flolentino.
Civil Code of the PhrI.. 69'1;.
3. What law determines whether the relationship of adoption has
been created or not?
(a) The child's personal law, to protect his well-being.
(b) If dre child does not reside in the countrv of his citizenship,
the personal iaw of the adopter u'tll govern, or the personai lau' of the
adopter and that of the cirild wrll be applied concurrentl\,.
4. What law determines the legal effects of the adoption?
The iegai effects oi
the adopuon are determined by rl-re same
law that created the reiationship of adopuon.
The iegal effects tirat flow from the adopuon are:
(a) Tire successional nghts of the adopted child;
(b) The parental authorin' of the adopter over rhe adopted child;
(c) The use bl the adopted child of the surnarne oF tl-re adopter.
5. An important problem in adoption in the Philippines is whether
aliens can adopt in our countrv. What is Philippine law on the
matter?
(a) As stated ir.r tl're discussion of Quesuon No. 1 hereof, rvhiie
the Civil Code of the Phrhppines did not allon' non-resident aliens to
adopt, PD 603 liberalized rhe Civil Code provisions on adoption and
allorved even non-resident aliens ro come to the Phdtppines and adopt
our childrer-r here.
(b) The Farnilr Code, howei'er, became strict in adoption of
aliens rn the Phiirppines because of reports received bi. the Comrnittee
tirat drafted the Code (of rvhich this author was a member) that some
Filipino children adopted bv aliens and brought bv the latter to their
home countries suffered culrural and psr,chologrcal shocli ar.rd could not
adiust to theil neu'hves in the foreign countries of their ioreign adopters.
AIso. rnformauon was received that old alien pedophiles. after iravrng
been allou'ed to adopt Fihprno children in thc Phrlppines, rvould. aitet
bringing said children to tireir home conntries. simply abandon these chil-
dren after tl'rev had satisfred their sexual destes on them. There rvere even
CONFLICT OF LAWS
STATUSOFCHILDREN 101
alleged cases of Filipino childten who, after ha'ing been adopted br,
foreigners, were killed for organ transplants in the fore4gr homes of theu
adopters. Hence, the Commrttee believed that bv limrung adopuon of
Frirprno children by al.iens to former FrJrpino ciuzens (and/or the6 spouses)
reiated by blood to the adopted chiidren, the latter would be given
some measure of protection bv the adopters who are their relauves by
consangurnirv.
(c) Republic Act No. 8552 or the "Domestic Adoprion Act of
1998" again allows aliens (who are not former Filipino citizens) to adopt
in our countr;,, provided:
(1) They have the same qualifications as tirose required of
Filipino citizens (See Sec. 7(a), Rep. Act 8552);
(2) Thet countnes have drplomanc relations wrth our countrf,
(3) The,v have been livingin the Phihppines for at least three
(3) years prior to ti-re fihng of the peution for adoption,
and maintain such residence until the adopuon decree rs
entered;
(a) They have been certified bv their diplomatlc or consular
offices or b1' any aPProPrlate govemment agenc' that thev
have the legal capaoty to adopt in their own countries and
(5) Theil government allows the adopted child to entet their
countn, as their adopted chiid
(Sec. 7 (b), Rep. Acl 8552).
(d) As for the foliowing a)rens:
(1) A former Fihpino citizen wl,o seeks to adopt a relatjve
within the 4th degree of consanguiniw or affiniw; or
(2) One who seeks to adopt the legrtlnate son or daughter
of his or her Filipino spouse; or
(3) One',vho is married to a FiLipino citizen and seeks to
adopt jointly rvith his or her spouse a relative within the .1th
degree of consanguiiltv or affnrq, of the Frlipino spouse;
the same Sec. 7(b) of Rep. Act. 8552 provides that d.rev need
not compiv wrth dre residencv in the Philippines required of
real aliens and they also need not submit a ccrtificatron that
the'r' have the capacitr to adopt from the diplornatic or
consulat office of their countrv in the Philippines or an1'
other government agency.
Note. however, that the special kinds of aliens enumerated above
rO2 STATUSOFCHILDREN CONFLICT OF LAWS
bv Rep. Act 8552 are requtred to be related to the ciriid to be adopted
N.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tirc
Famiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drd
not Lmit the degree of consanguinin' betu'een tl.re adopter and adopted
child. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs children
related within the 4tir degree of afhnin' to rhe adoprlng parenr. which
relationslrip of afhnin was nor included in Art. 184 of the Famiiv Code.
This author cannor understand, though, whv Rep. Act 8552 rn
the above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6f
rhe adopter and tire adopted child onlv ro rhe 4rh degree, This means that
a former Filipino would not be able to adopt the child of his or her hrst
coustn (5th degree) or his or her second cousrn (6th degree). Since the
important consideration here is the iove and protection that
a relative bl'
blood, who is now an alien, can glve to the child once the latter is brought
to the adoptert foreign home, it is irnmarerial how close thev are related
by blood.
6. The cases of Republic u C,A. and lfughes, 227 SCRA 401, and
Republic u Judge Toledano, GR. 94147, June 6, 1994, decided by
the Supreme Court, denied the joint petitions for adoption filed
under the Family Code by former Filipino wives, nou'funerican
citizens, and their American husbands, because what the Famill'
Code only allorved was ioint adoption b,v Filipino cirizens and their
aliens spouses. Are these decisions still good under Rep. Act 8552?
No more if the aiiens husbands of former Filipino tnves can
cornpll'with the requiremenrs for a[en adopters under Sec. 7 (b) of Rep.
Act 8552
But, Rep. Act 8552 still requires that husband and wife must
jointly adopt, rvhich joint adoption was also required br. the Famih.
Code, except when one spouse seeks to adopt his or her own illegrttmate
child, or when one spouse seeks ro adopt tl.re iegiumate child of the other
spouse (Art. 185, Famii,v Code). Republ-ic Act 8552 adds tl.rat in cases
where the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}).
the husband or tl-re wlfe can adopt alone, and the consenr of the othel
spouse to an adopuon Frled by one spouse is no longer necessarv.
CONFLICT OF LAWS S'TATUS OF CHILDREN TO3
7. What are the legal effects of adoption under Philippine lau'?
Rep. Act 8552 enurnerates the legal effects of adopuon as folior,r's:
(1) All legal ues
berw'een the biologrcal parent /parenrs and
the adopted child are severed and the same shall be vested in rhe adopter/
adopters, except in cases where the broiogrcal parent is the spouse of the
adopter. In other words, parental authorltv over tile adopted child is
uansferred to the adopter.
(2) The adopted child shall be considered for ail intents and
purposes to be the iegrtimate chrrld of the adopter/adopters, and as such
rs entltled to all the rights and obligations provided bv law to legrtimate
children.
(3) in legal and intestate succession' the adoptet/adopters
and the adopted child shall have reciprocal tghts of succession witirout
dlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,
appll if the adopted child and the adoptet or adopters had left a will.
(Secs. 16, 17, 18, ReP. Act 8552)
8. There are still other important points to remember regarding
the nature of adoption in the Phitippines law; namely:
(1) Adoption proceedings in our count4'are always iudlcial and
in rem ; i.e.. publication is tequired as constructive notice of tl-re petition
for adopuon to the whole rvorld, since adoption creates statlls.
(2) Since there can be no valid adoption without a court decree
granting the same, a ntere agreement of adoption berweerl the adopters
and tbe parents of the child is not a valid adopuon (Santot-\'nigo u' kepub-
lic, 95 Rep. 244:), nor the fact that the child had been adopted dt .facto
(ampon) by the alleged adopting patents (Ltiatin u.ludge Canpol 92 SCK4
2 t0)
of the child in the civil regrstry
(3) Nerther is the mere registration
as the child of the adopter a valid adopuon, This even amounts to the
crime of simulauon of btth punishable bv pison mayor in the medrum
period, and a fine not exceeding P50,000.00 (Sec. 2l (b)' Rep' Act 8552)'
(a) The capaciry and tght of the adopter to file a petition for
adoption, are governed bv the law in force at the time the petitron is filed,
and cannot be impaired bv a new iaw disquahfuing lrrm or her for adoption
 CONFLICT OF LAWS CONFLICT OF LAWS
IO4 SIATUSOFCHTLDBEN

(Repabtu t'. C-4. andBobilu. GR92326.24 Jan' /992;Republ;cu. Mi//er, GR

t 2 i9j7,,4Pri/ 2/. / 999;.

9. Should we in the Philippines recognize a foreign decree of adoption?

While there is no provision of law nor jurisprudence expressly

requiring the PhiLippines to recognize a foreign decree of adoption, it is
believed that under Sec. 48 of Rule 39 of the 1997 Rules on Civil Procedwe,
\r/e can recognize such foreign decree of adoption provided the foreign CHAPTER
court had junsdrctron to render said decree; and that there was no want
of notice. collusion. extrinsrc fraud, or clear mrstake of law or fact leading
to the foreign decree of adopt-ion.

This is particulady tme if both the adopter and the adopted child
are nationals or domiciliaries of the Forum that decreed the adopflon (R-abel,
id., p. 6a7).
10. Does adoption confer on the adopted child the citizenship of
the adopter?
No, adoption does not confer on the adopted child the citizenship
of the adopter. Adopuon is a matter politicai. and not civil, in nature, and
the ways in which tt should be conferred lav outside the ambit of the
Civil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho Ching
L-eng u. Galang, L-/ 1931, 2i OcL 195E.
WILIS, SUCCESSION, and ADMINISTRATION
OF THE ESTATE OF DECEASED PERSONS
1.What law applies in the transmission of successional rights upon
the death of a person?
There are two theories or svstems in determirung the proper law
for the transmission of successional nghts; the unitary or single sys-
tem, and the split or scission svstem.
Under the unitary or single system, onll' one iaw determtnes
transmission of real as well as personal properties. In countries following
the nationality theory like the Phfippines, the national iaw of the deceased
governs the transmission of both real as well as personal propertles,
while in common iaw countries or countries that follow the domicihan'
theorl', it is the law of the domicile of the deceased that governs.

However, under the split or scission system, which England

and the Uruted States adopt, succession to real property is governed bv
the /ex itat, sAt:ie succession to movable or personal proPerw is gov-
erned bv the law of the domicile of the deceased at the time of hls death.

In the Pluhppines, we follow as already stated, tire unitary or

single system, in that Art. 16 of the Neu' Crvrl Code applies the natronal
law of the deceased, whatever may be the narure of the property and
regardless of the country where the properF is found.
I06 !{ILLS, SUCCESSION ' ANd ADMINISTRATION CONFLICT OI; LAWS
OF THE ESTATE OF DECEASED PERSONS
2. When we talk of validin' of u'ills, u'e refer to both its extrinsic
and intrinsic validiw. Vhat does each validin refer to?
Extnnsic validrn' deals n,rth the forms and solemnrties in the
mahrng of wrlls, rvhich rnclude the age and resramentan, capacitl' of tl-re
testator and the forrn o[ the will (whether orai or wrltren, pubhc or
pnvate instrumen!. notarial or hoiographrc. the nulxber o[ wrtnesses.
etc.),
Intrinsic validitv concerns itself wrth the otder of succession, the
amount of successional flghts each heir gets, and such other matters that
fall under the term "substance" as distingurshed frorn ..form.s and
solemnities " oI rvills.
3. $/hat are the conflicts rules in the Philippines on extrinsic validity
of wills?
(a) if a Filipino makes a will abroad, ire mav cornply with the
formalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (the
larv of the place rvhere ire was at the time of the execuuon of tire wili
l.\rt. 815, Neu' Cir.il Code).
T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a will
rn accordance with Philippine iaw 01 New lbrk lauz
(b) If an ahen makes a will abroad. he rnav complv witl-r the
forma]rties of his /ar nationa/ii (the law of the countrr, of which he is a
citrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,il
Code), or tlre /e.:y /oct ce/ebrationit (the law of the country rvhere he,was at
the tirre of the execuuon of the will). (Art. 17. i.d.).
(c) If
an al-ien makes a wil] in the Philippines, he may comply
rvitlr tlre forma-lities of his own country (/ex nationalil or of philippine
last (/ex lod celcbrationi.)
(d) As for a holographic will. u'hrch musr be entuelv writren,
dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to no
other form and mav be made in or our of the Philippines. and need nor
be witnessed (Art. 810. New Civii Code).
4. rWhat are our conflicts rules on ioint wills?
CONFLICT OF LAWS wtLLs, SUCCESSION , and ADMINISTRATION 107
OT THE ESTATE OF DECEASED PERSONS
(a) Frirprnos canriot make yoint u'ills u']rether bere or abroad.
-fhus, jotnt wili rnade bt' tu'o Fiiiprnos in a foreign counrrv is void even
a
if valrd under tire iex ioci ceiebralioni.r ({fi.819. Neu'Cir.il Code).
ft) Joint wiiis made bv aliens abroad sirall be consrdered as valid
rn tire Philrppines if valid according to thelr iex nationttlii <;r lex domitilii or
il valid under tile lex loci cehbratioarl(Arts. 816 and 17, id.)
(c) Joint wiils made bv aliens rn the Philippines are void even if
valrd under thek /ex nationalii or lex dani,;liii, tn otder tlrat or-rr public pohcv
on joint wills ma1' not be militated agatnst.
(d) A iornt u,i.ll executed bv an aiien and a Filrpino ciuzen abroacl
will be vahd as to the ahen (if his national la-'r,, iaw of the domicile, or the
/ex /ori tvlebratiorzi allows it), but void as to the Filipino, tlre same being
against our pubhc policy on jornt rvdls.
5. rJflhat are the conflicts tules on the intrinsic validity of willsl
general ptoposinon. conflcts rules on tl,e inuinsic vahdrry
As a
oF wrlls are determined by the /ex nationalii of the deceased in countries
that foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume of
death, in countlies that follow the dorriciliary theorv
6. In the Philippines, what law govelns the intrinsic validiw of
wills?
The New Civil Code applies tlte lex nationalii of the decedent irr
par. 2 of its Art. 16. This was also followed b)' the SuPreme Court in
Midano u. Bnmo, 50 Phil. 867; Be//u' u. Be//it, 20 SCk4 558; antl Ca.vtlano r.
Leonidal 129 SCK4 524.
We must not forget, however, that in case <-rf confhct berrveen
the nationalry theorv and the domiciltarv theory, w€ can treat the case as
one of "renvoi" as in the Christensen case cited ear[et in this rvork, so
that we can still appl,v Philippine law even if the deceased was a. cittzen
of another countrv.
?. What are the conflicts rules if a Person dies intestate?
In civil law countries hke tire Phihppines. the nauonal larv of the
 CONFLICT OF LAWS
108 WILLS, SUCCESSION , and ADMINISTRATION
OFTHE ESTATE OF DECEASED PERSONS
deceased apphes. ln common law countnes likethe t,I.S. and Great Bntain
which follov, the spltt or scission svstem. rb,e iex riomialit of the deceased
at the rime of death appLies rvith respect to personai6" while the rcx situ.t
apphes with respect to real properfi.
of wills, what are our conflicts rules?
8. What about revocation
(a)Undet Att. 829 of the New Civil Code, a revocation done
outside the Philippines bv a person who does not have his domrcile here,
rs valid if done accordtng ro:
(i) The law o[ the place where the will vras rrrade (/ex lotz
celebrationis); or
(2) The law of his domicile at the time of revocation (/ax
donicili).
A problem here wouid arise if the testator revokes his
vdll while domlciied in one country and later, changes hrs
domicile, then dies in the latter state. If the laws of hrs former
domicile and irrs domrcile at rhe time of l-ris death are different,
which law applies? Common sense and logrc should applv
the law of the domrcile at the time of the testatork death'
but this is not what our law savs
I-lkewrse, suPPose a non-domrciiiarv makes the revocation
in accordance with the law- of the place where he *'as at the
trme, are we not going to recognize the revocation? Why
indeed does the Civil Code ignore the law o[ the place of
revocation, when we follou' rhe lex /oct ceiebrationts tn
determining: the validity of rvills executed abroad? Is not
the desite of the testator to revoke his wili as imPortant as his
desLe to make a will?
(b) If the revocation is done in the Phihppines, tt is valid if made
in accordance with the provisions of our Civil Code (Att 829' id')'
(c) the revocation is done outside the Philippines bv a Person
if
who is domiciled here, it rs yalid if made in accordance with our law (the
tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the
revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)'
9. What law should be applied in the interpretation of wills?
CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 109
OFTHE ESTATE OF DECEASED PERSONS
(a) As in contracts. the provisions of a wili shalr be
intelpreted in
accordance wrth tire testator's intenuon. If the terms ar. .le^r and
unambrguous, the hteral meaning of dre supulauons shall control. otherwise.
the evident intention of the testator must prevail by not only refernng to
the context of the will but also taking into account the contempor".r"Lr,r,
and subsequent acrs oI the restaror (Arts. 1370 to 1378, Nerv Civi] Code).
(b) If
the testator's intention cannot be ascertained by the
preceding rules, the interpreration of ambiguous words must be made
in accordance wrth the law which was mosr probably rn the mind of the
testator when he used those words and with which he is presumed to be
most fami[ar.
(c) If dre will admrts of different interpreta[ons, that which will
make the dispositrons operative shall be preferred. The interpretation
that will grve the will rhe mosr favorable construction to accomplish rts
purpose shall be made (Arts. 788-792, Nerv Civil Code).
(d) Every effort shouid be made ro prevent intestacy in keeping
with the policv of respecung the will of the testator, provided that this
can be ascertained.
10. What is probate, and what are the conflicts rules on probate of
wills?
(a) Probate is the process of proving before a comperenr court
the due executron of a will, that the testator u/as possessed of tesramentary
capacity, and the approvai by said court of the will.
(b) The allowance or disallowance of a will is essentiallv
procedural, so that the lav"'of the forum applies to all procedural matters.
(c) Under Art. 838 of the first paragraph of the New Civil Code,
"no will shall pass either real or personal properry unless it is proved and
allowed in accordance wrth the Rules of Court".
(d) Tirere is no period of prescupuon for tiie probatc oia will.
For the probate of a wiii is not exclusivelv established ur thc interest of
the survrtng heirs but primarilv for the protection of the tcstator's ex-
pressed wishes in the disposrtron of his properties. Since the probate of
 110 WILLS, SUCCESSION , and ADMINISTRATION CONFLICT OF LAWS
OF THE ESTATE OF DECEASED PERSONS
validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havc
intended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara.
'CR L-5105,
.lan. )/. / 956;.
(e) Wills proved and aliowed in a forergn countr\! according to
the laws of each counnv. may be allowed, frled. and recorded by the
proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court).
(f Although a forergn u.dl had alreadv been probatedin a forergn
countr\, it still has to be reprobated in the phiiippines in accordance with
our procedural lau; because a foreign judgment, no matter how intnnsicallv
meritorious. cannot ha'e. as a general rule, automatic extraterritorial
effect. But instead of provrng all over agarn the due executjon of the urdl.
it rs ordina'ilv sufficient to ask for the enforcement here of the foreign
judgmenr of the probate abroad.
(g) The evidence necessary for the probate or allowance of wills
which have been probated outside the piril_ippines are:
1) The due execurion of the wi_1l in accordance u,,ith the foreign
law because we cannot take judicial notice of foreign laws.
2) The testator had hrs domicile tn the foreign counrrv urhere
the will was probated;
3) The will had been adrrutted to probate rn said counrry;
4) The foreigntribunal is a probate courr;
5) Tire laws oi the foretgn country on procedure and allowance
of rvrlis were follorved.
(|,'cia. De Pereia. Tolere. 2J2 SCk4 724.
11. What are the conflicts rules on administration of estate of
deceased persons?
(a) Bv "adminisrration" is meanr the process of determiniog and
realizing the assets of a deceased person, the pavment of tl-re debts of the
estate. and the actual drstr-rbution of the residue ro the heirs.
(b) Lik" probate, administration is procedural in narure. Therefore,
it is tlre lex.fori that go'erns, not the larv tirat determines how the estate of
the deceased is ro be drstributed.
(c) In charge of the admrnistration is an esecuror (rf one is
CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 111
OFTHE ESTATE OF DECEASED PERSONS
appointed by the testator rn his will). an administrator vzith a will annexed
(one who is appointed bv the court if there is a will but no execuror is
designated therein), or an administrator (if there is no will, the court
appoints an administrator of the estate of the deceased).
(d) The executor is qualified, and the administrator of the estate
is appointed, by the court of the counw where the deceased was domiciled
at the time of his death; or if he was a non-domiciiiary the countrv
where his properties are found.
(e) The rights, powers, and duties of the executor or administrator
are coextensive with the terdtorial jurisdiction of the court that qualihed
or appointed him. Thus, an executor or administratot qualified or
appointed by a Philippine court has jurisdictron only over the properues
of the deceased located in the Philtppines.
(f Administration gtanted in the country of the deceased's last
domrcde is called principal domiciliary administration; administration
in othet counfties whete the deceased also left properties, is called ancillary
administration.
(g) As held by the Supreme Court inTajtagu. Bengaet Consolidated,
Inc., 26 SCRA 242, the domiciliary administrator of the estate of a
deceased American citizen in the U.S. has no Powet over and is not
entitled to the possession of the stock certificates of shares of stock
owned by the deceased in a Philippine colporation, which certihcates
must be delivered to the ancillary administator of the deceased's estate in
the Philippines, to be administered by the latter in the nature of assets of
the deceased liable for his debts or to be distributed among his heits.
12. What is meant by the "caduciary rights" of a State in Conflict
of Laws?
If
the deceased had properties but left no heirs and no will, how
can the country where the ptoperties are located claim said ProPertles?
There are rwo theories adopted bv different states so that they
may claim the properties ieft bv a deceased who left no heirs and no will.
First, some countries includrng England and most American states
adopt the theory that such propenies have become ownedess (bona uatantici);
112 WLLS, SUCCESSION, and ADMINISTRATION CONFLICT OF LAWS CONFLICT OT LAWS
OF TI{E ESTATE OF DECEASED PERSONS

hence, thev should revert to the state uzhere thev are situated bv escheat.

in the Philipprnes and some civil iaw counuies, the theory adopted
is that the State is the last het of a deceased person. Hence, the State
succeeds to the propercies left bv sard deceased as an heL.

1ji. There is nodifficulty if a foreign element is not involved in the

case. But suppose the domiciliary of one State leaves propenies

E
in other states? How can those othet States claim for themselves
the ptoperties left by the deceased? CHAPTER

Example: A Chinese citizen died with subsantial business intetests

in the Philippines but with no heirs and no vdll. If we apply Art. 16, par.
2 of the New Civil Code, the national law of the deceased appl-ies to his
succession, and if Chinese law- provides that the home state of the
deceased (China) inherits as his last heir, China can claim said properties PROPERTY
and business interests for itself.
L. Are the conflicts rules
on real and personal properry
the same?
The Phitippines can, howevet, claim said properties and business
Almosr alJ ieea] systems
interests, by adopting the.theory of "caduciaq' dghts" of the State. This adopt the /ex tttai ot /ex rei
iaw of the p)oce wh.re sitae. r.e., the
is in consonance with the proposition thar in a situation such as this, "rules the propcrry
..al prop"i.n rrrus, tire 1u* ir.f...r"i
of conflict of lav;s are largelv abandoned and each country eppears to
very thin
;i-;;;;..ff"::'::',1.1.*tm respe* ro
g
work on the principle of seizing all property of tle deceased lying within
e

logrcal' 'As
c on c e rn
t'e pr'ce'whe'e
i n s re a r p
il ;. ;, :";1i: .. ::l :,:rr. fl":::Tj
rop er n.. +
.1:
its borders"; i.e., the Philippines should regard said prcperties as owner-
nghts ovsr rt. evervbody ^
*:,;;a
,r.in! is rhe natural cenrer of
less or bona uacaxtia.In short, the properties pass to the Phiiippines as an
reckon wrth the law of
.o"..;;;;,ir'rlr. ,n.* mav be expected
iuch pir.",;6ri"iii*' to
incident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged,
564). Indeed, u ."r.r.n."
to Laq p.
5th ed., p. 92). the /ex i/u.,.of real J-1'l5"io-.nal
ro r c

expectations
er tai n qi predic
of
ta bil*i; ;;,il;;;' iJTff T J ^,X."t::,:l'jffi :
the parues, ,, d.oL;;;i'rr.i proo.rq,.
Tl-re same cannot be
said of the law
movables. The old rule ,
Personal properq,' or
during the Middle
0 n a m, s in c e
p en
p er s o n d p r; ; ;-" ; ^H "on o: r rr:;::
rff :.:,:
personal effects or b.longings
of the ": : ;;r^:
u'herever he wenr. Therefir.l "*'* i"t ra. he carried with hrm
sir.; ;;;lro.,
sltus, an artificial situs aa not have , n*"j
rv glven to them; namely,
ov/ner. "s the personal l^*
"a;lr;
Recendy, in ma countnes' tbe lex
b.." itat or lex rei tilaa has at.so
^d;;;;;ft;'r#:t
:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:l
for the patties and thrd persons
*ho -uy be affected by ights in
ren
 CONFLICTOFLAWS PROPERTY II5
114 PROPERTY CONFLICT OF LAWS

created over personal properues to have those nghts enforced and made Example: X, a California ciuzen domiciled in Caiifomia, sells to
effecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has a Filipino domrciled rn the Philippines a piece of land located in Florida,
the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei USA.
sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.
of tire rransacuon
(a) The exrnnsic validrn' (the formalitres) is
governed bv tire iex itus (Floidalawi.
2. How about in the Philippines, have we also adopted the rule of (a) The capacities of both vendor and vendee are govetned by
the lex situs or lex rei sitaewith resPect to personal properties? Fiorida Law
(b) Tire rntinsic validiry of the transaction is govemed bv Flonda
Yes, for Art. 15 of the Neu'Civil Code provides that "real law
properw as well as personal properly is subiect to the iav/ of the country
(See also pars. (2) and (3) of Art. 80 of the Famrly Code

where ir rs situated''. applying ila.r to the exftinsic validity of contracts

3. Vhat was the reason given for the change of rule in the New
Civil Code?
The late Senator Lorenzo M. Tanada, Chairman of the Special
Committee on the Neri" Civrl Code, explained thc reason thus: "Now
that there has been a great increase in the amount and variew ofpersonal
properfi, not immediateli' connected with the person of the owner, it
was deemed advisable bv Congtess of the Philppmes to adoPt the doctrine
the lex
involvingteal properties not siruated in the PhrJrppines).
5. What are the exceptions to the rule of the /ex situs ot lex tei
sitaewith respect to teal properties?
The exceptions to the application of the lex itus ot lex rei silae
with respect to real properties are the foliowing:
(1) Succession: In civil law countries iike the Phrjlppines' testate

<:f iex rci ilae also to movables"
lndeed, it l-ras been held that personal Properrv mav be separated
from its owner, wiro mav be taxed on its account at the piace where the
property is located. althougl'r ire is not a domrciiiarn citrzen or resident of
tlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r.
In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnes
that even lntangible properties like sltares of stock in a corporation'
franchises, credits and tl-re like are nou' considered movable propern'
although thev have no phvstcal or materiai srtus.
and intestate succession, vrhether the properties are real or
personal and wherever thev tnav be located' is governed by the
natlonal iaw of the deceased, not the lex sitas. including the order
of succession, the amount o[ successional nghts' and dre intrrnsic
vahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New Civil
Code).
Capacrw to succeed is also governed bl the nauonal iaw of
the deceased (Arr 1039. id.).
(2) Contracts involving real properw but do not deal with
trtle or reai rigirts over the ProPert)', the issue being the contractual

4. What matters connected with real property are governed by the rights and liabiliues of the parties, are governed by the ProPer
Iex situs? Iarv of the contractl i.e., either the lex /oci t'o/unlalzs or the /ex ha
intenlionA .

Extrinsic and intrinsic validitv of transactions over real proPerh

such as alienauons, translcrs. and mottgaees: capacitl'' of the contracting
parties; interprctation of documents, eFfects of ownersl-rip; co-orvnership;
lccession: usuFt'uct: lease: easement: quieung of utle: registration: pre-
scrrpuon; pohce power: cminent domainl and taxation are govemed bv
the iex.ri/u.;.
Example: A Filipino landowner hires a J'apanese
gardener for the latter to convert into a Japanese garden a
parcei of land in the Philippines' This contract is not
governed bv tl, e lex ita.r akbotgh the land to bc developed
is located in the Phrlrppines' \'Vhat governs is the proper larv
of the contract benveen tl-re parties'
115 PROPERTY CONFLTCT9FLAp5
(3) in conttacts where reai ptoperhr is grven as secunw b,v
wav of mortgage to secure a principal contract (such as a ioan),
the loan rs governed bv the proper laq,' of the contract berween
the partres, while the accessory contrzct of mortgage is gov-
erned bv rJ;'e hx itat.
(a) While the valtdrq,'of a transfer of land must, as a rule, be
determined bv the lex iltus, the validiry of a contract to transfer is
determrned by the proper law of the contract (Salonga, Priv.
International Law, 1995 ed., p. 473). The obvious explanation
for this is that while the transfer of land involves the t-itle theretq
a mere contract to transfer is a personal contfact that dogs not
create dghts in reru. (id.)
6. What are the difficulties in applying the rule of the lex situs or
lex rci sitae to movables or personal properties, and how ate they
to be resolved?
(1) If in possession)
the personai property is tangrble (called chose
and has a fixed sirus, there rs no problem. But there are many different
kinds of personal properties that do not have hxed situs, like those that
are usually in mouon or have changrng sirus (e.g., vessels and goods in
transit). or intangrble personal properties like rights and shates of stock in
a corporation which, because they have no material existence, do not also
have material or tangible sirus.
(2) The aforesaid personal properties which are usually in
mouon or do not have tangrble existence are thus given artificial or
constructive situs, which will be discussed in the succeeding questions.
7. What constructive situs is given to choses in possession that are
usually in motion?
(l) Vessels, in view of their inherent mobihry are governed by:
(a)The law of the flag, if it is a public vessel;
ft) The law of the country or place of regrstry. if it is a
private or commercral vessel, If, however, the vessel is
docked at a foreign port, said port is deemed as its
temporary situs.
CONFLICTOFLAWS
PROPERTY I77
(2) Goods in ftansit are governed as follows:
(a) As to liabfity for loss, destrucuon, or deteriorauon
of
goods in transit, the law of destination is applied (Example
is Art. 1753 of the New Civil Code).
@) Th. varidity and effect of seizure of goods in ttansit are
governed by law of the place where the goods were seized
w*rich is their temporary situs.
(c) Disposition or alienation of goods in transit is genenlly
governed by the propff law of the contact between the
parties (the kx loci wlantath or hx loci iilentiorn).Th. reason is
obvious: such disposition or alienarjon is effected through a
contractual obligation.
In some states, however, the transfer of tide to chattels
is govemed by the law of the place where the chattels are
located at the time of the transfer, and this title will
ordinarily be recognized in aoy other state where the chattels
are brought or transferred.
8. What are the rules in grving constructive situs to intangible
petsonal ptoperties or choses in action?
lntangible personal properties or choses in action may be credits
(or debts), negotiable instruments, shates of stock in corporations,
franchises, goodwill of a business, or intellectual propetties like patents,
tradematks, tradenames, and copynghts. The situs 5{ven to them are as
follows:
(a) Credits (or debts):
(l) Involunary ftansfer or assignment of a debt (gamishment)
- The situs is the place where the debtor may be served.with
surrunons, which is usually his domicile.
(2)Voluntary assignrnent or transfer of credit - The proper
Iaw of the contract controls; i,e, the proper law of the original
transaction out of which the chose in action or credit arose.
There are other theories like:
(aa) The law of the place where the assignment is ex-
ecuted - This theory is criticized because the law of the place
where the assignment is made may be purely fortuitous or
 CONFLICTOFLAWS
118 PROPERTY
CONFLICTOFLAWS
PROPERTY 119

accidental. oI there mat'' ha\re been several assrgnmenrs all

vaLid accordrng to their respective /e;yet actu:.
(bb) The iau' of the piace rvhere performance or
pavmeflt ts normall-r' expected - firis theorv ma\'-. however.
contemplate muinple situation, since recovcn'mav be made
a ransfer unless entered in the books of the corpor a6c>n (LJnson t:
in any iurisdrction wirere tl-re debtor mair be made subiect.
(cc) The nat-lonal iau' of the parues or, in a proper case.
' therr domiciliary lar'": But parties mav have dtfferent
tl-re
personai laws, or a needless invesugation of what the personal
laws of tire Parties is inevitable.
(3) Situs of a debt for taxatron purposes rs the domicile of
the creditor, where the collecrible cred.tt may be taxed. (Minor,
id .PP l8l-282)'
(4) For the purpose of administenng debts. the sirus is tl.re
Cotpotations, Sec. 376; alsq Sec. 650, Corporarion Cocie of
the Philippines)
Attaching or execudon credirors are not bound bv the
Dionmito, 6r Phil' 53-i), unless said creditors actuallv knew of the
unregistered transfer (Fua Cn a. Summerr,44 pbit. i0,
(2) Chattel mortgages or pledges of corporate shares of stock,
even if registered in the colporate books, do not bind the
corporation, but the parties are bound as long as they are validly
entered into by them (Monserat u. Cewn, 5S Phit. 26/).
(3) Sale of corpotate shares as between the patties is
governed by the proper law of the contract (the lex loci uolantatis
or intentionit)bectusethis is really a contract. In many cases,
/ex bci

olace where the assets of the debtor are actualiv situated (Minor, the proper law of the contract is the place where the certificate is

ta, OP 283-285)' delivered to the buyer (Cheshire, id.,p.62!.

ft) Negotiable instuments: (4) Taxation on dividends received by corporate shates is

(1)
'I'he iarv drat determ-tnes whedrer dre urstnulent rs negotiable
or not is:
(aa) The iaw governing tire nghts embodred in the
instruffrent CX'blff, rd.. p. 561). Thus. rf it is a Phihppine
check, Philippine law will applv; rf it is a California check,
Calitbrr-ria lau' applies.
(bb) The Arrerican Restarernent, hou.ever. ciarrns that
the sirus is the place where the instrument $'as executed
(Am. Restatement, p. 348).
governed by the law of the place of incorpotation. Thus, taxes
on dividends from shares of stock in a Philippine corporation
may be taxed here, although the owner of the shares does not
reside in this country (Matila Gar Con a. Co//.,id)
(d) Franchises:
Franchises are special pdvileges confened by the govemment
on an individual or a corporation and are subject to the Iaw of
the state that gmnted them.

(3) The law drat determines the validrw of the transfer, deliverr,: (e) Goodwill of a business, and ta:ration thereon:
or negotiation o[ negotiable instrurrrent rs gencrallv the la*' of
the sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. or Art. 521 of the New Civil Code provides that goodwill of a
business is property and may be transfered together wrth the
negotiation (Cheshu'e, Prir'. Int. Law, p. 622).
right to use the name under which the business is conducted.
(c) Shares of stock of corporations; The goodwill of a business, as well as taxation thereon, is
governed by the law of the place where the business is carried
(l) Sales of ct>rporate stocks are Poverned bv tl-re law of the on. "Goodwill" is the patronage of any established trade or
placc o[ lncorPor:rtion, since rt is there that the transfer is business; the benefit acquired by an establishment beyond the
rec.r.d.d rn thc books o[ the corporation (Reale, Foreign value of its capital stocks, funds, or property, in consequence of
the genenl public patronage and encouragement that it receives
r2O PROPERTY CONFLICT OF LAWS
from its customers (See Menenrieiu Ho/t, 128 ti.t 514).
(f) Patents, copvrights, trademarks, tradenames, and
servicemarks:
/1) As a general ruie, patents, copvrights, trademarks, and
tradenames are, in the absence of a ueary protected onl,ir by the
state that granted or recognized them (lVolff, td., p. 558).
(2) In the Philippines. Art. 520 of the New Civil Code
provides that "a trade-mark ot trade-name duiv regrstered in
the proper government bureau or office is owned bv and
pertains to the person, corporatlon. or hrm registenng the same,
subject to the provisions of special laws."
(3) Under Sec. 21-A of Rep. Act No. 166, as amended by
Sec. 7 of Rep. Act. No. 638), any foreign corporatlon or;urisuc
person to whicir a mark or trade name has been registered or
assigned under this Act mav bring an action for inftingement,
fot unfair competition, or false destgnatron of origrn or faise
description, whether or not it has been licensed to do business in
the PhiJrppines under the Corporation Code, at the time it brings
the complaint; Provided that the country of u'hich the said
foreigo corporation or jurisuc person ts :r ciflzen or in whrch it is
domiciled, by tteaty, convendon, or larv, grants a similar pnvilege
to corporations or jurisuc persons of the Phihppines.
(a) As to copynghts, the formel ruie is that a copyright is
protected only bv the state that granted or recognized it, absent a
ueag. Thus, a copvright in State X could not be enforced in our
country in the absence of a treary unless a similar copvright was
also applied for and granted in the PhiJ-ippines.
(5) On September 27, 7965, the Phiiippines became p^rw
^
to dre Union Convention for the Protection of lndustrial Property
adopted in Paris on March 20,'i993. Art. 8 oi said Convention
states that "a trade name lmeaning, a corporate name] shall be
protected in all fie counftles of the Union ulthout the obligauon
of hhng of registration wirether or not it forms part of the
ftadename".
CONFLICT OF LAWS
PROPERTY I21
(.6\ ln Philtps Erporr B.It. u, C4, 206 SCk4 457 (1992), the
Supreme Court reiterated its earlier ciecision in Wesnrn
E quipment
and Suppn Co. u. fu1et 57 phil /t j (7927), that a corporariont
tigirt rouse its corporate and trade name is a proper$
nght, a
ngbr in rem,wlich is enutled to protec[on like any otl.,.,
tungibi.
properry and cannot be rmpared or defeated by subseq"uent
appropriauon bv another co{porarion in the same field.
(7) Speaking of trademarks, the High Court, jn Enera/d
Cament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actual
use in commerce in the Philipprnes is an essenrial prerequisite for
the acqursiuon of ownership over a trademark pursuant to Sec.
2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)
(8) in 1998, Congress passed Rep. Act No. 8293 known as
"The Inteliectual Properq'Code" and establishing the Intellectual
Property OfFrce. Under Sec. '123 of the Acq certain marks cannor
be registered, among whicir are those -
"x x x identical wrth, or confusingly srmilar to,
or constituting a translatron of a mark which is
considered by a cornperenr aurirority of the
PhrJrppines to be rvell-known internationally and
rn the Philippines, whether or nor ir is registered
here, as being the matk of a person other than
the applicant for registration, and used for
idenucal or similar goods or services".
Sec. 3 of the same Act provides that forcrgn
corporation, being a national or domiciliaq' of ^ny
a country which
is a partv to a convention, ueat\! or agreement relating to intellectual
properfv ngirts to which the Phihppines is also a partv or which
extends reciprocal rights to our nationals by law, "shall be
entitied to benefits to the extent necessarv to give effect to any
provision of such convention x x x". Such foreign corporauon
even if it is not engaged in business in the Philippines may
nevertheless bring a civil or admtnistrative action for opposition,
cancellation. infringement, or unfat compefltion, as provided
for in Sec. 160 of the Act. However, under Sec. 156, same Acr,
onlv ownerc of registered marks may recover darnages from
anv person who infringes his rights.

CONFLICT OF LAWS
CHAPTER
M
CONTRACTS
1. What is a "contracttt and why does the law on contracts present
many problems in Conflict of Laws?
"Contract" is dehned bv Art. 1305 of the Civrl Code of the
Phihppines as "a rneeting of minds betrveen lwo Persons whereby one
binds hlnseif, with respect to the other, to give somedting or to render
some service".
Although conftact may create a status like rnarriage, or creates
a "acceptance made by letter or telegram does not bind
or uansfers real rights or title to properry (like sale), the specific subject
of "contract" in Confuct of Laws is limited to purely civil or commercial
transactions.
Every state, in the exercise of its sovereigntl', has the nght to
determine its own law on conuacts. As long as there is no foreign
element in a contract, questions pertaining thereto are governed by the
Iarv of the forum state. It is when there is a foretgn eiement in a contract
that problems arise, for then, the forum v'ill have to decide what ]aw
shouid be applied in deterrnining the existence or non-existence of a
contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacity
of the conftacting parties.
CONFLICTOFLAWS CONTRACTS 123
A. EXTRINSIC VAIIDITY OF CONTRACTS
1. \$/hat conflicts rules determine the extrinsic validitv of contracts?
As a general rule, the exrrnsic validrty of contracts is governed
by rhe kx loci cehbration*, otherwise calfed lex loci contractut.
Att. 77 of the Civil Code of the Philippines ptovides that ..the
forms and solemnities of conftacts, wills, and other public instuments
shall be governed by the laws of the country in which thev are executed".
And Sec. 9 of the American Resratement Second, considers as binding
the "formalities which meet the requirements of the place where the
parties executed the conttact".
2. Are there variations of the rule of lex loci celebrationis in
determining the extrinsic validity of contracts?
Yes, there are variations.
(a) Suppose a contract is entered into by parries in rwo
different countries bv cablegram, telex, or fax. \fi/hat is the place
of execution?
(l) Arl 1,319, par.2 of our Civil Code states rhat
the offeror except from the time it came to his knowledge.
The contract, in such a case, is presumed to have been
entered in the place where the offer was made.
In the PhJrppines, the bx loci alebratioaziis, therefore,
the country of execuuon.
(2) In American laq however, a contract is deemed
entered into in the place where the acceptance of the
offer is posted or mailed.
@) Suppose the place of execution was meteiy casual or
accidental like a Chinese and a Filipino who, meeting accidentalll'
in Hoogkong, entered into a certain contract or agreement there
to be performed in the Philippines.
 CONFLICI OFLAWS CONFLIC-T OF LAI,VS CONTRACTS 725
124 CONTRACIS
has the most significant 3.what law will govern the incapacitv of the alien in the following
Itt stttlt :r clls(" lh( l;r*'rvirich specific problem?
shortlcl bc applied ln .tircrrvords'
reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt
rvhich the partres must hav-c
tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl. An 18-yr. old alien, who has no capacitv ro contracr under iris
tc; qt'-c eifect t() tilclI
transactl()n'
assrttrctl ri'ottitl lrc aPPitecl nadonal iaw wherein the age of maioriry rs 21, enters mro a contract in the
namelt' I thriqlPrllc larri Phihppines. can he later plead his incapacrtv under his national raw to
wiren the
x1s' lex loci clnfracla! er.ade the contract?
(c) 13vwav oi other excePtlons
contravenes an established and rmportant
ctr lu loti ielebrationi't to No, because to apply the narional }aw (or iaw of dre domicile)
to it wouid work gross injusuce
pohcv of tt-" toru-; or ^PPI\; bonot mores' of the alien in determining his capacity ro conftac would require Fil_ipinos
the people tr i*"*; orli tire ftan'saction is contra to fust ascertain what the personal law of thar alien is. sometimes with
'i"
Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:r to comlq'' great difficulry such drat busjaess uansactions.xrith aliens would be greatly
cases arc clear excepuons
of conuq" and tire foregorng impeded.

B. CAPACITY OF PARTIES 4. The weakness of applying the national law of the conracting
of the party as to his capaciry in the foregoing cases is thus seen. How
What are the conflicts rules
in determining the capacitv can such difficulties be avoided under our law?
1.
contract?
Parties to a
gc,l':t"td
(a) If
the conrract is entered into in the Phiiippines, or rhe
contracts is generalll'
(a) Capacrn' to enter lnto -:'i^'n'
ln performance of
ti're contract would be in the Philippines, vre should
tiril is the natlonti larv of the parues apply, not the personal law of the parties, but the proper law of the
personal la'r' oi tire O^'Jt" ff
theorl" and bv tl-re law of
the domrcile
countries followrng the nadona[w conff2cts
contract or the law mtended bv the parues, to determine tl.reir capacity.
tl-'et'rv' Excepuons are
in countries r"["*"g t;Jt"ttiiiti"u botl.r reai and
(see Paras, supra, ciring dre Geneva Conventibn and the German Civil
of p'op"'ties'
involving aliet'otioriot encumbranct to'lt'"cttng parties is governed Code)
in which *'"t t^p*'* t'f
tl-tt
personal, (b) We should limit the application of Art. 15 of the Civii Code
bl the /ex rilzt' (on capaciry to conftact) to agreemenrs involving familv and domestic
telati.ons, while we should apply the proper law of the contract in business
in the
(b)
llilpp,n.,t1,::.^':?:'[,il;r:T".,,
thrt cepaciw of I Frirprno ls
governed Dr I
* iJ:i:: or commercial transactions (Salonga, supra, citing Rabel).
theort''
b".nrr.. ve folion' the nadonaliry
C. INTRINSIC VALIDITY OF CONTRACTS
of the Filipino in the follorving
2' What law governs the capacitv
sPecific Problem?
the age
1. What are the conflicts rules on intrinsic validity of contacts?
into a contract in ltaiv where
A 20-vr' old Filiprno enters under ltalian (a) Broadly speaking, the intrinsic validiry of a conuact is
plead irrs incapacin
cii maiorrtv i' 21 ;' ;:;ililer under tht contract? governed b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatit
ceiebralionu) to avoid [abiiiw
Iau' (tr"lrich is the /rr ioct or the lex lod inlenlionis.

hct has dre capacin'to

c()nffact (RcP'
No. llc<:ause r'rnclcr l)hil' latrr tt'tt;^1-L:.]'ot ft) In Amencan lau'-
t. 18 vears)' 11 (1)The Amencan Restatement of 1934 required the
6809 has rcclucecl
";';:';;;;;"q capacifi' tot"'^t' of Filipinos is govetned application of the proper law of dre contract, or the law
thePhrhpprncs pror'ides that 'o
bv therr nattonlrl hw of the place of performance.
126 CONTRACTS
CONFLICTOFLAWS CONFLICTOFLAWS CONTRACTS I27

wiren the change is so revoluuonarl' that it could never have been con-
(2) According to ti-re Second Restatement' howcver' the tempiated bv tl-re parues Oiblff. supra. zl30--131).
la.r, to be applied should bc the larv clrosen br. the parues: tt
none' the lav'of the state u'hrcir has the most slgnlllcxni (c) Several laws mav be selected. each o[ which u'ill govern ti-r€
relationship to the parties or to the transacilon different elements of the transacuon (Chesirue, Private International Lau,
p.236)
(3) Prof. Raleigh \4rnor advocates the application of the
followtng different laws: (d) If under the selected law, the contract is legal. but in the place of
nkbrationit'
(i) As to the perfectlofl of the contrac t - lex loci performance, it rs illegal, the selected law should prevail and the contract
(ii) As to the validrry of the consideration - hx loci should be considered legal (II Rabel, supta, p.537). Orherwise, the place
considzrationis. of performance, which couid be merely accidental, wili control. Besides,
(') A.,.Gff;::T#::f;ilffi /;;i;ci ntu'ln ni: the place of performance mav be different under different larvs fWolfi,
supra. p. 135)

(c) In the Phil-rPPines:

(l) l&'e have no specific provision of lav'applicable to
conflicts rules on tl-re intrinsic validiw of contracts'
Horvever, the poiicy oi our law is to give effect to the
in
rnteorion of the parties' Indeed, the parties may establish
their.contractssuchtermsandconditionsaStheymaydeem
convenient, ptovided they are not contraly to law' morals' good
customs or public policy (Art' 1306, New Civil Code)'
(2) Thus' rve should appl,v the ProPer law o[ the contract'
i.e.. the lex lotz aohtnlalei (the law expresslv agreed upon
by the
parti.es) or the /ex loci inlentionis (the law lmpliedl-v agteed
upon
ty tl,. po.u.r), as determined by manv factors' especially the
iaw that has the most substantial connection widr the transaction,
by the
or the law that may be presumed to have been intended
parties to bind their uansactions
(e) Assuming that the law ol the place of performance can be ascer-
tained, (as when it is expressly agreed upon b1' tlie parties), still, quesuons
of substantral and essentral vahdtry (such as whether the contract is valid'
t'oi.dable, or void) should be governed by the proper ia.r" o[ the contract.
Onlv minor details (such as the time of ptvment during busrness houts)
should be governed by the law of performance (Chesite, supra)'
(f) \\hile may stipulate on the proper law of the contract,
ti.re parttes
thev cannot stipulate on the jurisdiction of courts or to oust our courts
of therr: judsdicuon (Molina r. De la Naa 6 Ph;/. 12).
(g) The parties cannot also contract away aPpLcable provisrons of
our law that are heavily impressed wrth publ-ic interest or which involve
public policy (like our iabor laws) (Pakzstan Internationa/ 'Airlinu u Opk'
1e0 scK+e2.

in (h) American law recognizes "cognovit" clauses if the parties werc

2. But there should be limitations to the court's choice-of-law
what of equal bargaining power and the debtor voluntarily agreed to sald
determining the intrinsic validity of contracts' Can you state
clause.
thev are?
"Cognovit" clauses specify rvhich courts would have
(a) Generally, the parties cannot select a law that has
no connection iurisdiction in case of breach or default in payrnent' or it mav
be one that waives the debtor'.s right to notice (otl.rerwise knorvn
at all with the transaction
as confession of iudgment).

p) If the law selected should change' rt ls the new law that should
law can
be applied, for it may be presumed that the Parties knew that
is'
b. chanped as times and condiuons change' The exception
^l.,uou.
12S CONTRACTS CONFLICT OF LAWS coNFLIcroFLAws
coNTRAcrs t2g

D. SPECIAI KINDS OF CONTRACTS 5. Lease of service (or empiovment) agency,

guarantv or surewship.
1.. Based on our existing lau's, state the conflicts rules in the
foliowing special kinds of contracts: 1 .Jn..: are personal conrracrs; hence
the law on contracts
wili apply
1. Barter. salc. donauon: (^) Extrinsic validtry _ lex /oci celebrationit
(a) Extrlnslc validiw - lex tilu.r
(b) Capaci6' of the parues - /ex situ.r . (b) Capaciry of.f..
n"rues _ personal law of the parties
(c) Intrinsrc vahdrq' - kx vlut i G) Intrinsic validrty - /ex bi aoluntatit or lex loci
inteilioni.r
2. Lease of properry: j nut an agency to alienate or encumbet
c! : is governed by the /ex itat.
real property
b
(a) If it creates
real rights, such as those for a period of more L] 6.Contract of ransportation or carriage:
tl-ran one vear br is regrstered, apply lex sirus.
$* This is a contract to render service; therefore,
(b) if the lease is from montl-r-to month, week-to-week, or da,v- the law on
contracts applies.
to-day. and does not cteatc teal nghts, apply the law on contJacts:
(a) Extrinsic validity _ lex loci celebrationit
(1) Extnnsic validitrl - lex lori celebrationit
(b.) of pardes _ personai Iaw of the parties
(2) Capaciw of the parties -personal ]aw of the parties -Capacity
(c) Intrinsic validiry - lex hci uolnntatit or /ex /oci intentionis
(3) Intrinsic vahdity - lex loti uoluntath or lex loti intentionit
(d) Uabilitv for loss, destruction, or
deterioration of
goods in transit _ law of destination
3. Pledge, chattel mortgage, real estatc mortgage, antichresis: of the goods (Art.
1753, New Civil Code).
(e) If the Carriage of Goods by Sea
(a) Extrinsic validiry kx .rilat Act governs,
- the limitation of the liabiliry of the
carier underiaid Act
(b) Capacity of the parties * lex ntul applies, unless the shipper declares
the goods and inserts
(c) Intdnsic validrq' - lex iltas such declaration in the bill of lading Q4meican pretidrnr
These are governed bl'the lex situs because they are Unes a. KWrr, fiO phil.24j (tg6q.
contracts of encumbrances of property, real or personal.
But since they are accessorv contracts, if the principal I{ however, the contract is for intemational
contract secured bv them is void, thev are also void. aL transporation:
(a) The [abfity of the airline in
case of death, injury to
passengers, o^r loss or damage to
4. Conuact of loan: cargq i. go\r..rr.j bu
the Warsaw Convention, ,m.nd.4 ,o oihi.h
I[ it is mutuum, apply the rules on contracts ^, *. b",_
came a party in 1951 (santos III a. Nortbwett oient,4ir_
in gencral: i.e .. tine4 210 SCk4 2 j6 (t 994.
(a) Extrinsic validrq' - lex loci rclebrationi.r
(c) Capaciry of the parties - personal
(b) But if there was malice, gtoss negligence, bad
faith,
improper discrimination Jn the p".t of
law of the parties 9r
Its agents, the carier is liable for damages
*" .roi.. ol
(d) Intnnsic validiq - lex lorz uoluntatis or beyond those
by the Warsaw Convenf_ion
/ut inlenlnni.t
tT**a ltiprqr.'p"r2;,-;;
/ex SCLA ajt KLA4 RUal Dach Airitu ,. C)1..', os
If it rs commodatum, appiy the lex situt because it is a real SCRA 237-(1965);
(t 975); Sabena Eelgian lyorld Airlinu
t. C_4".
conuact. 255 SCRA 3S (7 e96).
 CONFLICT OF LAWS
CONFLICTOF LAWS TORTS 131

who, contrary to law. wilfully or negligently causes damage ro anothei.

shall indemni$ the latter for the same". This is a new provision under
a chapter 2 of the code on Human Relabons, which is an enrirely neu,
F" Chapter in the Code.
('
A
, =
L' 4rt.2176 of the same Code, on the other hand, tetains the Spanish
concept of cupa aqailiana ot quasi-dtlict. It provides:
.'t
J .l

CHAPTER c t "\X{hoever by act or omission causes damage to anothet,

there being fault or negligence, is obliged to pay for the damage

M
.t done. Such fauit or negJigence, if there is no pre-existing contractual
tn
<. s relation between the parties, is called a quati-dtlict and is governed
E by the provisions of this Chaptet."

TORTS 3. In Conflict of Laws, what law governs liability for torts, and
1. What is the meaning of "tort"? what ate the reasons for the tule?

person or proPerry
"Tort" is a legal wrong cornmitted uPon
(a) (a) Liabfity for torts in general is govemed by the /ex loci delicti
independent of contract^ commbii; i.e., the lav of the place where the delict or wrong was
committed.
aqailiano
(b) In Spanish lavr, the concePt of "quasi-dehct"
or
lalpa
fault or negligence caus$g
-.t ra.. all acts or omissions committed through @) Reasons for the rule:
damage to anothet. independent
of contract' (1) The state where the social disturbance occutted has the
primaty duty to redress the wrong and determine the effects
through
damage to another
It covers aII cases where a Person causes of the rnjury; and
do so; i'e'' unintentional wrongs' tle victim for the damage or injury
negligence, or with no tntentiorto (2) To compensate
suffered.
"tort"-has a broader'meaning' for it
(c) In American lavi however'
through negligence' but also 4. In applying the rule of lex loci delicti conmissii , how is the
covers legal wrongs toi o"fy commrtted
those committed with *^Utt t'
willfi:l tntent' but of course' independent locus delicti determined, especially if the wrongful conduct is
of conftact and covered by
of conffact' Otherwise, it *tt U" breach committed in one state and the iniuries are sustained in another,
another field of law, conuact law or the conduct is a continuing act that spans several states (like in
the U.S.)?
2.Vhatistheconcept'of'(tott''inthePhitippines?
There are at least three (3) theories tn determrningwhere the bcat
Civil Code is a blending
Our concept of "tort" under the New ddictik:
American tort' which mav be
of the Spani sh cr'tlpa-aquiliana and the
but also with malice
. committed not onlY ifttotgft fauit or negligence' (a) Civil law theoty - the loat the act began. This
dekcti is v.rhere

andwillful intent' is so since the rules on tort are intended to regulate human
conduct, such that a person who willfully and negligendy
provides: "Every Person
Thus, Art' 20 of the New Civil Code acts contrary to the social norms must be held liable for the
 CONFLICTOF LAWS
CONTLICT OF LAWS TOf,TS ur3
132 TORTS

Upon their return to New York. Babcock sued

inlurv causcd (il Rabel, suPra, p' 303)' -Jackson for
damages under Nev'York lavi Ontario,s law does not al.lov,
an1 reco\/en'. Can Babcock recover damages from Mr.
Example: \X4rile huntrng m State X near the bouncian'
Jackson
under Ner*'' York La'u'?
of Statc i', Jrm shot Ross' who was standiog
"ccidentallt'
onasueet-instate\lThelocusdclictirsStateX'because Held: Yes, for, except for the minimum conract \rrlth
that rr/as where the negligent act occurred' Ontario law as the accident happened in that place, ali the
dominant contacts and factors connected with the accidentwere
is the place where the
(b) Common law theory:The locus deluti in New York; namely, the parues resided in that place; their
that wrthout an
wrongfui act became effecgve The reason is guest-host relationship started in New York and was to end rn
is no necessit\ fot
injurf the,. is nothlflg to ptotect and there Nerv York; and the car where the parries rode was garaged,
;udicral telief' hcensed, and insured in New York. So, the state of Nerv York
the had the most significanr relationship to the case.
Example: In the above examPle under par' (a)'
locus dzlicti is State Y'
,Q) Saadi,4rabian -4irhnu r C-4, 297 .tck4 a69 ( 998); .

which has
(c) Theory of Dr. Rabel - The locat delictiis the place
wtongful act'
the most substanrial connecdon wlth the
Example: The situs of the radio station whete
]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthe
broadcast is heard in manv Places'
the locus delicti
5. Because of the diffrculty in determiningwhere
is, some modern theories have been developed
in determining
liabitity for totts. Please state what thev are'
Here, our Supreme Court held that Philippine law should
applyi because it was in the Philippines that private tespondent
working for respondent
deceived pla:nnff-stewardess; plainbff was
here; plaintiff's natrona]itv and domicile rvere here; we were
a
intrmatelv concerned with the ultrmate outcome of the case not
onlv for the benefit of tl-re litgants but also for the vindication of
our country's svstem of lau'and justice in a ttansnadonal setung.
Hence. the lorus drlittiwas the Philippines
(b) The interest-analysis apptoach:

(a) The de of the "State of the most signifi-cant telationship":

This approach considers the relevant concerns that nvo or
of 1969' is more states may have in the case and dreir respecuve interests in
This de as stated in the Second Restatement
a case of tort is apph'ing their lav's to it. I[ this approach is applied to the Rabcock
that the rights and obligations of the parties in
which' with respect case cited abor,e, it would appear that only New \brk lav' had a
determinei by "the local law of the state
significant relationshLrp to legrtrmate interest in advancing its purposes and pol-icres, while
to th" p^rdiar issue, has the most
Ontario, Canada iaw had no intcrest to advance. ln othcr words,
the occunence and the Patties"'
it was a case of false c.rnflict.
If, horvever, the case poses a real conflict berween the in-
ExamPles;
terests of two or more States. if the interested forum finds that

(l) Babcock u. Jackton, N'Y'2d 47); 191 It'E' 2d 279

l2 the other State has a greater claim rn the :rpplicauon of its law to
lr'{rs' Jackson left New \brk' a glven case, the forum should vield and applt' the larv of the
(96)'' Babcock and Mr' and
Mt'Jackson for a other state. Or, if the forum is disinterested in the case, it can
their residence, in the Jackson car driven by
Canada' Mr' dismrss the same on the groun d o( lbran rcfl Lvnuettien,r. In short,
weekt trip to Canada. \X4rile uaveiing in Ontario'
of the car and Babcock was badly hurt' the State which has the rnore relevant and rveiglrw interests in the
Jackson lost conttol
 CONFLICTOF LAWS
134 TORTS
case should be constdered tbe ioul deJicil.
(c) Qaver's principle of preference:
Under this theory, a irigher standard of conduct and
Frnancial protectron given to the iniured party by one State is
applied by the State where the iniury happened, if the latter
State adopts a lower standard oI conduct and financial
protectlon to tl-re iniured.
Example: As a resuit of an illegal sale of iiquor
to X in the State of Minnesota, T, a passenger in the car
driven bv X in an intoxicated state, was hutt in an accident
that occurred in the State of\nisconsin. Sued for tort by
f in Minnesota, X moved to dismrss the case on the gtound
that the accident happened in Wisconsin, the law of whiclr
required that rvrongful act and the injuty should happen
in the same State before the recoverv can be irad.
Held: To appiy Minnesota law to the case would
be more in conformiry wlth the princrples of equiry and
justrce since X'.s wrongful conduct was completed s'ithin
N.&nnesota where X became intoxicated befote leaving
said State and before going to Wisconsin rvrth T. Besides,
the parties both lesidents of \4tnnesota whose law
"vere
dernanded a higher standard of conduct than that oF
Wisconsin rvl.rere the accident happened. (SclLnidt u Dnlcoll
Hotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS
6. What are the conflicts rules on maritime torts?
(a) If thc tort is committed aboard a pubhc vessel, whether on
the high scas or rn foreign tcrritorial waters. tire law of tl-re flag rs the /rx
io ti de li cf i cont n i.r.r i t.
(b) If thc tort ts committed aboard a private or merchant vessei
on the lrigh seas, thc larv of regisuv is the lex loti delicti commissii.
(c) lf trvo vcsscls c<-rl[de and are from the same state, the ]2w of
registq is rhc l'.r /a,r r/c hilt ,rtmmit.rii.
(d) ll-tlrt' r't'ssc'ls come trom different states rvith identical
lau's, appll s;ritl rtlctrttcrl linvs.
(c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws,
tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and
CONFLICT OF LAWS
TORTS 135
applied bv the forum wirere tl're case is rrled
@aras, supra. p. 39.r. citing
Amencan cases).
7. Is a foreign tort actionable, or may be the subject of an
action
for damages, in the Philippines?
(a) Yes, provided we acquire lurisdictron over the defendant
(because an action for damages is an actron in penonam)and certain
conditions are present, namely:
(1) The foreign tort musr nor be penal ln nafure;
(2) The enforcement of the torrious habi[n, shouid nor con_
travene our public policy: and
(3) Our judicial machinerv must be adequare for such
enforcement.
(b) Remembet, however, that while all procedurai matrers are
governed bv the lex.fbi (.i.e., PhrJrppine law), since the case is hled here, ali
substantive matters are governed bv the lex lon dc/itli .rommzL.Lz7. Thus:
(1) The period of prescriprion of the action rs governed by
the kx loLi de licti nmmis.riibecause in Philippine larg prescripuon is
substantive, not merely procedural.
(2) The proper parties, the measure of damages, and the
questron whedrer d1e act complained of rs considered the proxrmate
cause of the injury, are ali governed bv the lex loci delicti tommixij.
(3) The burden of proof and the defenses drat may be rnterposed
by the defendant are aiso governed bv hx loti de/icti commnit.
(c) Example of a foreign tort actionable in the Philippines:
X and I both Ftlipinos, were vacationing in Hongkong. One day, while
driving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter to
be hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,
Y sued X for damages adsing from the rott commirted bv the latter
while thev were in l{ongkong. Will tlie action prosper?
Yes, provided rt is hled within dre period prescribed by Flongkong
of prescriptron is subsrantive
Iaw, dre lzx bci rhlicti tvmmhlii, since the penod
and not procedural. The kinds and measures of darrrages recoverable b1-
Y, and the defenses that X mat' put up, should also be governed bv
Hongkong law, which is rhe lex lott delicti commilsii. But all procedural marrers
hke the period for filtng the answer, the period for appeal. etc., sl-rould be
governed 6v rhe lex./ori. whrch is Phihppine law.
136 CONFLICT OF LAWS
CONFLICT OF LAWS

8. What is thc Alit'rr 'lirrt Act, and do vou know if it has been
applied in cast's lilctl lrr trilipinos in the United States?

(l) 'l'lrt' ,\lrcrr'lirlr Act ol

the United States. which was enacted
in 17U9, grants t I.S. tlsrrrcr courts original jurisdrctron over any
civil acuon
hled by ,rn alrcn lor a rorl commrtted in violation of the law of nations
or a lreah' r>f tlrc Unrted States.

(b) It was under the above law that the United States Court of
Appeals upheld the jurisdrction of the distnct court of Hawaii over a
class actron for damages filed by almost ten thousand Filipino victims of
human nghts abuses and tortw'e comrnitted bv dre iate President Ferdinand
Marcos and his ofhcials rn the Philippines during the Marcos reglme,
resulung in a nearll US$2 briiion judgrnent in favor of the victims andf or CRIMES
their lrerrs (Tralano a. Marcot-Manotoc, / 25 LEd. 2d 661 , 17 3 S. Ct. 2958.
1. Distinguish tort from crime.

(a) Whiie both tort and crime are wrongs, a tort violates pnvare
rights u'hile a crime is committed against the State.

(b) Tort acuons are instituted by the mlured person against dre ttongdoer
in a civii case the purpose of which is indemnifrcatron fcrr damages
suffeted; wirile crimes are prosecuted in the name of the State agarnst the
offender in crimirrai actions the purpose of which are the protection and
vindication of the interests of the public as a whole, the punishment of
the offender, the reformation of the offender, or to deter others tiom
committing the same act.

in character, so that the tortfeasor can be

(c) Torts are transitorv
made liable for his wrongful act in any furisdicuon where i-re mav be
found. Crimes, on the other hand, are iocai and can be prosecute d onlv in
the places or states rvhere the crimes are committed.

2. How does the court determine whether a wrongful act is a tort

or a crime?

The determination of whether a wrongful act is a tort or a cnme

depends on the charactenzation of the act in the state where said act is
committed.
138 CRIMES CONFLICT OF LAWS
CONFLICT OF LAWS CRIMES 139

In thr'ltlrrlrpl)lll('s. ('('rtitlrl:lcts mal be both torts and crlmes.

Under Art. 33 o{ tlrc ( tvrl ( .otlc ol'thc Philrppines. "rn cases of defamation.
fraud. and phi'stc;rl lrrprrr('s. a ctli] actton for damages. enurelv separate
(d) Real or eclectic theorv _ Anv srare whose penai cocie
has been transgtressed upon has jurisdrcuon to bring to iusuce tire
and disdnct i'r'orrr tircl cltnrinal acrron, mal be brought bl t]re rniured
perpetrators of the crime, whether the crime was commrtted rnside
parw. Such civtl actron shall proceed independentlv of the crir'i'rai
or outside rts own terrttory. crimes under thrs theon'would rnciude
prosecutlon, ar-rcl shall recluire onlv a preponderance of evidence."
pitacy, slavery', drug tratficking, imrnorai tmffic in women and
children, etc.
Take the ofienses classifed as "'criminal negligence" r.rnder Art.
365 of the Revised Penal Code. They mav be ptosecuted as crimes bv G) Cosmopolitan or universality theory - Any state
where the criminal is found or whicir has obtained custody over him,
the State. On the odrer hand, the vrctims ma,v file separate actions for
can trv him for the crime he has allegedly committed, unless exrradidon
damages against the offenders based on torts.
apphes.

3.Vhat are the different theories that determine whether a state

or a legal system has jurisdiction to take cognizance of criminal
(0 Passive personality, or passive nationality theory -
The State of which the victim is a citzen or subject has jurisdiction to
cases?
Prosecute the offense.
(a) Territotial theory - Under this theorli the state whete the
(The above enumeration was taken from Paras, id., pp.
crime was committed has juusdiction to tr\: the case, and its penal code
403-406)
and the penalties prescribe therein rvili apply The teason is that the
aggrreved state is dutl'bound to prosecute and punish the offender as his
4. Which among the theories enumerated above, do we follow in
crime affects direcdt'and particularlv dre drgruq,, authoriq', and soverergnh'
the Philippines?
of the state w'here saici crime is committed.

'lhis theort mav be of two kinds: In the PhiJrppines, we foliow as a genetal rule the territorial theorl',
and by wav of exceptron, the protectrve theorl'.
(1) The subjective, territorial principle - under which the
state wllere the crime was begun may prosecute the same, even
if it was complcted in another state. .In other words. we cannot prosecute a cdme committed abroad
(Like bigamy, rape, or murder) in the Philippines, because it is committed
(2) The objective territorial principle - under which the
outside our territorial jurisdicuon.
state can prosecute crimes begun abroad but completed rvithin
its territory.
We also follow the rule o[ generaltrv in criminal lau'; i.e., al]
fParas and authorities cited, supra, p. a0a)
persons, whether Fihpinos or aliens, are subject to our penal laws and can
be prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).
(b) Nationalitv or personal theory - The countrv of which
the criminal is a citizen or sub;ect has jurisdrcnon to tn'hrm for crimes
5. In what cases do we follow the protective theory, such that
allegedly cornmrtted b,v him, whetirer inside or outsi.de its tetritory,
even if the crime was committed outside our territorial jurisdic-
provided it is a crime under said countr,vh penal lau,.
tion, the crime is triable bv our courts?
(c) Protective theorv - Anv state whose nacionnl interests
Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnal
mav be jeopardtzed has lurtsdictron over cnmrnal offenses. even if
Code, lo wil:
comrnitted outside its territorii and in some cases. even if committed
"Except as provrded n thc treaties and laws of prei-crenna)
bv an alien.
 CONFLICTOFLAWS
140 cRlMlrs
,rtr.tr. llr(' l)r()\'lsl()11s of this code sirall be enforced
;rl)l )lt(
1.r .rl\' \r'lllrlr) lll(' l)hihpprne Archrpelago. including its
:lilltr,s!)ll('t('. lts ll)tc:fl()r waters and maritrme zone but also
otllsltlt'tts lttrts<1tcuon, agzlnst those rvho -
(l) Should commlt an offense \'"'hile on a Philippine
slltp ' rr arrshiPl
(2) Sirould forge or counterieit anl'corn or currency
note of the Philipprne Islands or obiigations and secudties
issued bv the Government of the Philippine Island;
(3) Should be liable for acts connected with the
introduction into these Islands of the obiigations
mendoned in the preceding numbers;
(4) \Xhile betrg offrcers or emplovees, shouid commit
an offense in the exercise of their official functions; or
(5) Should commit any of the crimes against
nationai security and the law of nations"'
Examples of crrmes against tire iau' of nations are airPlane
hijaclung, piracl or mutlnv on the high seas, dtug trafFrcking'
6. Do we have jurisdiction over crimes committed on board a being essentially the same. Thus, if aboard a German
foreign vessel if said vessel is within our tefritorial waters?
Tl'terc aretwo ti-reones that have generally been used, and which
our Supreme Court has appl-ted ln the old opium cases, in
determining
the Enghsh Rule (which emphasizes the
this quesuon of iurisdtcuon;
French Rule (wi-rrch stresses the nationality
territorial principle) and the
theory).
(a) English Rule: The territory where the ctrme was
committed (in our problem . the Phiiippines) will have
iurisdiction excePt:
(a) In matters reiating to the internal order and
drscipline of the vessel; and
(b) Those which affect soleiy the ship and its
occupants such as minor or petfv criminal
offenses committed bl' members of the
crerJ/.
(?aras. id., p. 410, citing Hyde, International
Laq Vol. I, p. 739)
CONruCTOFLAWS
CRIMES 141
(b) French Rule: The stare whose flag is flown bv rhe vessei
has jurisdrction. excepr if the crtme affects rhe oeace.
order, securiry', and safew of the territory. paras. rd., ctting
Bnedy, Law of Nauons. p. 180)
The above two rules were also cited and
compared by the Supreme Court rn the case of people t.
lWongCheng,46 Phi/. 279, although rhe Court also held that
as we were at that time a tertitory of the United States, we
follow the English rule which was the one prevaihng in the
United States. This case, however,'involved the crime oi
smoking opium in a forergn vessel anchored rn Manila
Bay, which the High Court held was a breach of our pub-
lic order because ofthe pernicrous effects that ir produced
in our terdtory. In shott, dre Suprerne Court actualiv applied
the French rule to the case, not the English Rule.
Nonetheless, as observed by the lateJustice Paras in his
book rn Confhct of Laws, "the difference between the
two rules is largely academrc and theoretical, the two rules
ship anchored in Maniia Bay, the crime of murder is
committed, under the English rule, the Philtppines would
have junsdiction in view of the general rule. Under the
French theory, the Phiiippines would also have iurisdicuon
under the exception, for the crime indeed affects the peace
the territory, \X4rether we follow, therefore,
and secudty of
the English or French rule on the matter is not signihcant:
The effect is the same". (?aras, supra, pp. a10-a11)
7. Did the United Nations Convention on the Law of the Sea
change the above rules?
Art.27 ofsaid Convention pardy provides:
"Criminal jurisdiction on board a foreign ship
1. The criminal junschcuon of thc coastal State should
not be exercised on board a forergn ship passrng through the
territorial sea to arrest any person or to conduct any rrvesugation
in connection with a crime committed on board the shrrp during
 CONFLICT OF LAWS

142 CRIMES CONFLICTOFLAWS

its passage, save onlv in the following cases:

(a) If the consequences of the crime extend to the
coastal State;
(b) If the cnme is of a krnd to disturb the peace of the
country or the good order of the territoriai sea;

CHAPTER

In short, under the rules of said Convention Philippine

courts do not acquire jurisdiction over cdmes commrtted on board a
Iu
BUSINESS ASSOCIATIONS
foreign vessel even if it is within our territorial waters as long as the effect
of such cdme does not disturb our Peace and order. Th,rs is similar to the
Ftench rule to the effect that we have no iurisdiction over ctimes A. CORPORATIONS
committed aboard foreign vessels even if they are found within our
territorial waters except when the crimes affect the peace, order, securiry
1. How do you define a "corporation"?
and safety of our countty and territory.
A corporation, accotding to Sec. , of the Corporation Code of
fie Phihppines, "is an artihcial belrg created bl the operation of las',
having the right of succession and the powers, attributes, and properues
cxpressly authorized bv law or incident to its existence", rvl-riie Section
123, ol the same Code, defines a foreign corporation as "one formed.
c+'ganrzed or existing under any lar:,'s other than those of the Phtlipprnes
and whose laws ailou,'Fil-ipino citizens and corporations to do busi.ness in
its own countrv or state".

2. What are the different theories in determining the personal or

governing law of a corporation?

There are at ic^st three (3) theories, namely

(1) The theory that the personal law is the law of the
place of itlcorporation:

Under this theory, horvcver. l corporati<rn carr cvaclc rnaul

responsibilitres bv simply orgrnizing irr onc st;rlc and perfbnnrng
its ftrnctions in anotlrer staf e.
144 BUSINI Ss A\\( )t l/\ ll( )N5 CONFLICT OF LAWS coNFLIcr oF LAWS
BustNESs ASsoctATIoNS l4.s

(2) 'l'lr tlrt.orv of the place or center of management: For the purpose of determrnrng
a corporanon,.s domrcile. Sec.
14 of corporauon Code requrre. ,rrn, ,i,"
tl-re
( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet in arilcles of rncorp.ration
.f n phrirppinc corp( )rauo, ,)Lrsr srare
,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.
tlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslv of the corporation is to be estabrrsireci or ..whicrr
lc,cated. piace must be
pt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tire withrn the Phiirppines". Thus, the place
of incr )rPoralon of a PhrJrppine
prtrrctp;rl n)('cur)g place of the board is. corporatlon rs also its domicile.

(3) 'l'he theory of the place of exploitation As for a foreign corporation that has been
granted a jtcense t<;
operare or r() do busrness rn the phi,rppines,
-l'l.re it o.quo., ao*r.rr. i., ,rri,
de fect of this theory is that the corporation may have countrv by vrrrue ol said license. As heid
bi, the Suprem Coun in C*)i*
its enterprise scattered all over the rvorld. Besides, the physical
acts of thc corporation are not as unportant as the decisions
lr.;s6i4 1 s, a. Mirt aa t,,. S t.r / enr. l n t.. l g 9 S Cll I O J t'(t ;;rl" ;"';'JJJ::1.
fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do business
reachcd bv rts board oF directors. in the PhrJrppines is to enabrc the courts ro
exercise jurisdiction ,";;;;
or the regulatron of tl-reir activitres rn our counff\,.
(Paras, supra, and authorities cited, pp.420-421).
5. Vhal are the exceptions to the theory
that the personal law or
3. Among the foregoing three theories, what theor-v do we the nationality .f a coqporation fotows the
place of its incoqporation?
follow in the Philippines?
The exceptions are:
in tlre Phrlippines, we follou,' the theorv of the place of
incorporation. (a) For constitutional purposes, even rl corporauon was
incorporated in the phiJrppines. it ."r.no, exproit ^
or d.-relop o.,, ,r^,..rr"'
This is rmphed from the deFrnrtion of a foreign corporation by fesources nor operate pubhc urrhties unress
6070 0f the capriai is Firiprno
our Corporauon Code as "one formed, organized or existtng under any owned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)
lar.vs other than those of the Philippines x x x". In other words, if the
corporadon organized rr the Philippines, it is a Phrlpprne or domestic (b) For wartime purposes, we adopt rhe control
"r'as
corporation; if organized elsewhere or abroad. it is a fotergn corporation. pierce of coryorate rdentin. and go lrrto t1.,.
';;;; we
test; i.e..
.the 'eil
controlJrng stockholders to deter'rinc *l-retrrer
a
"^"";;
corporauon is an enem',
4. Vhat about the domicile of a corporation? Where is it? corporarion.
Thus, a German_controlled corporation, even
According to Article 51 of the Ner.v Civil Code, "When the larv
ii
incotporated in the pl-riJippines, was considered
an coemr.
creating or rccognizing them, or anv otirer provision does not F1x the corporaflon during the last Wbrld War for the purpose
of freezrng
domicilc of jr-rndrcal persons, the same shall be understood to be the its assers (Dauid Winethop u phil. Tnul. L_)g69.
/an. , 195?).
3/
place whcrc tlrcrr legal representation is estabiished or where thev exercise The doctrine oi pierciog the corporate veii or
dreir pnncipal hrnctions." drsregarding tie corporate fictt<_in also permrts the courts r<r
lmpose personal riabilrn, on the stockholdcrs if
the c'rporadon
l'.r,crr l tk'li.cttvclv organizcd corporation which the lau'regards form has been used_ ro defeat the pubhc ..,nlr",rr"r.",
as de.falo ursofar 1rs lnll()c(.nt third persons are concerned can possess a wrongs, or protcct fraud
lurtif,
or crtme (.l.art lJoon Bet anrl Lo. u..i.
domicilc ftrr tls r/r //.r,/, ('xlst(.ncc (Mal)onald zr FN'CBAI', L-7991 , Majt Jarencio, I 61 .\Ck,1 205).
27. / 95().
l.16 BL5l\l 55 ,\55(,L1,\llOi\5 CONFLICI'OF I ,\\VS
6. Vhat matteis are governed bv the personal law of the corporation?
'I'hc pc,rsonll lau' of tire corporati()n (rvhrch. rn thc Phihppines. is
tire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation of
tire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members
,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thc
transfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation.
the rssuance, aln()unt and legahw of tirc diviclends, and the powers tncl
duues of the offtcers. stockholders, and mernbers.
7. ttr(/hat law determines the validity of corporate acts and contracts?
T'he vahditl of corporate acts and contracts is determined br'
tl.rc lav of the placc of incorporation and bv the larv of the place of
pertormance. To be vahd and binding, such acts or contracts must bc
authorized bv both larvs. If valid in the place of incorporation but void
in tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts or
contracts is doubtlul and it mav not be griven effect at all, without prejudicc
to the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra,
and authorities cited, p. a29).
8. May a foreign corporation sue and be sued in the Philippines?
Yes, if it has the necessarv hcense to do business here (Sec. 123.
Corporation Codc). The license is required not to forbid the foreign
corporation from perfolnng single acts but to prevent it flrorn acquiring a
domicile for purposes of business u'ithout takrng the steps necessanr to
render it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vr
Cu.. 16 l'hti. -11
'Iiansacting ol dorng business connotes a continuity of business
dcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521).
llvcn a single rct or transaction ma); however, l;e an act of
<>rdinalv l>ursiness o[ the corporation if it is not merell incidental or
czisual blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, other
l>usincss rr tlr(' statc and to make the state a base of operations for thc
conduct ol' a part of tlre forcign corporation's ordinan' business ( R;r
I '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion Nankai Kogyo Co., Lld., L
"'.
lli2l. \ot'. 10. l()6:'\.
BUSINESS ASSOCIATIONS I47
9.How may our coufts acquire jurisdiction over
a foreign corporation
doing business in the Philippines?
Bl service of sumrrons on:
(a) rts resrdenr agent designated in accordance
wirh ra*,for
r hat purpose;
(b) If no such agent, on rhe governrnent official
desrgnated
by law ro thar effect; or
(c) On any of its officers or agents within the philipprnes.
(Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.
10. suppose a foreign corporation transacts business
without first
,btaining the necessary license, what is the status of its contract?
The conrract
is unenforeceable; i.e.. the corporation cannor sue in
, )ur courts until the necessaq' license is obtained. After the
issuance of tire
license, suits mav be instiruted even on the pre-license contrzcts
which are
considered vahd ( Marrhell-lV,e/h s, Co. 1,. hher Co., tupre.
But the person who contracted with the corporation may be
considered in estoppel if ire had received benefits from the ..rnr.n.,
;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).
11. May a person sue a foreign corporation that transacted business
rvith him without a license?
Yes, because the corporation cannot put rrp by way of defense
tts own failure to comply with the lauz (Gen. Cor. of the phi/.
I/. (J nion In.r.
\ode! of' Canton, 48 OG #1 ,
Jan. 1952, p. 7). But rhe court must be abie
to acquire jurisdiction over the corporadon.
12' If the corporation sells its products in the philippines through
an agent, is that doing business here?
If the forergn corporation sells its products in the phihppines
rhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r,
the corporation, thar is doing business here. But if the foreign corpora-
tion sells its goods in the Philippines througrr an cxclusive ;istnbuung
agent, it is doing business here, because thc agent is acungonl'in behaii
oi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).
l{E BUSINESS ASll(r('lAl loNS CONfLICTOFLAWS coNrLIcroFLAwa
AssocIATIoNs teg
"usINEss
lit. May a forcign corporation not doing business in the Philip- allowed to sue on ,
pines euc? the cessation €ntered into ptevious
l1'11lt""ln'.1lif#:T:.""1 to
to contracrs""'- enhcal rule should
also apply
Ycs. tn (a) rsolated transactrons;
entered into p'or to the
corporatronis rrcense. of the forergn
(b; to protect its reputation, corporare nam{and goodwilt 6norur, ,rpr^. ;d;;;:'-::."t1on.
ronues cited, p.
43g).
Thus, a foreign corporatioa can ask a local coutt
to restrain some Filipinos from organizing a local B. PARTNERSHIPS
corpontion with the same name and the same business
1. Vhen does a partnership exist?
(lYestern Equipnent Supp! Co. a. Rga, 5l Phil. I l r,
provided a similar pnvilege is granted to Philippine
partnershrp exists when
corporations by the plaintiff's home state (Sec. 3, .1 two or more Ders^nc l-;_ r -r
to contnbute money, properff bind themselves
Rep. Act 8293). or indus,,v ,,"tPttton'
(c) for infringement of trademark or rade-name, ; ;i' p;#' ;;;ffi ;;:T"::(TT? #:3#* i::
unfair competition or false description of products, and "?'il$ffi il"1i
infringement of patent (Sec. 160, id.).
like a corporation, have juridic
3; l_r.j;!"rtnership, al pers onatity
14. What about mul 'national or transnational corporations, what
law applies to them?
ln the phrhpprles. a parrnership .,has a.;urichcal
separare and distinct from les. personaliry
These ate actually branches of a big, mother corporation in a that .o.1, of the iartners,, (Art. 176g,
id.).
hfttrly industroli"ed, hrghly developed foreign country but doing business
However, in the United
in many countries of the world through branches that have been States rnd sorne countries
and Latin America, parrnerships in Europe
incorporated under the law of each country .or state where it has are nor ,"g.i.a ;, ;:;.;i.."r
extended its business, in association with local businessmen. Since they
with ju.drcal pcrsonalitie.
of tlr.r, r"Xl;.
.rw-i-.i..', For the purpose
tnscrlverrcl proceedings (Sce
Canpo., t\r,r,ao jJ'Co. t: puc.
of
are incolporated under the local law of each state rvhere they are doing Cont. Co. 14 phil.
91 6). However.
in the ,T,."0 Sor.J .a^,
business, the branches are sE)arate entities govemed by the said local , n.-_ ,r_.1. has been developed,
getting away from dre old
laws, but in reality, the major decisions in their operation and management common
simply an aggregate of individuar,.
i;;;;;p""n rhar a partnershio rs
are controlled by theit mother or parent corporation. However, the
end& distlnct from the partners.
;";;;rr* treating ir o ,.porrr.
branches, having incoqporated in the states where they are established, are ^,
govemed by the intemal law of the said states, and their personal laws are
3. Vhat is the personal
the local laws of the host states. or governing law of a partnership?
IJke Ph'ippine colporatl.ns,
trre personar or governing
partnership is the law of raw of a
15. May a foreign corporation be sued after it had already with- the countn'#;."; is creared (See Art.
Code of Commerce). 15
drawn from busineee in the Philippines?
Thus, marrers iike organiza,.ron,
on contracts previously entered into by it. After all, fairness
Ye s,
demands that the citizens and residents of the Philippines be affotded the
o f its ct., tr., r.,n uirrn,
con tra
persons, dissolution" and
;?;il; ;.i; l;:i ;jffi:: ::':,:Xf.:
caDacin

wrndrng rp.
opportunity to sue thcse foreign corporations locally, instead of requiring personal law or the taw of ^,. ^ttgnl,*n".1 lr.,, thc partnership,.s
t1.," ,,oi" *h";:; ;;,
them to sue in thc foreign countries where they are domiciled. By the crcated.
same token, thc f<rrcign corporation that has with&awn should also be
For example. in a New \brk case wl:ere a limited partner under
 CONTLIC-I OF LAWS
150 llllslNl 'rr'. Atrrrl rl lA lll lNrt CONFLICT OF LAWS

(.rrlr;rrr l,ru, \\',r1, ru('{l tlr l'.1('\r Yrttl' tot lllcach of contrlrct entefed lnto b\
the liurtted partner
tlrc rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that
(
wa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t
enl;rrge thc liabihn'oi-
\t'il:
a hililtt rl ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact
lt,rt
clrt( f'( (l f ttl,, trt Nt's \ "rli (irrrlq t'' \''trrju' 6t N)- 2a 187 '\'S'

4. Whcrc is thc tlomicile of a partnership?

tlrrtlcr,'\rticle 5l of the Nerv Civil Code' the domicile t-:f

dornesnc cor?orauons'
p^rtncI'sl)ll)s ()r:ganlzcd under Phdippine iarv is' Iike
vhcre thel
:,tl_,.
pl^.., rvhcre their legal representation is estabhshed of
cxercisc their princrpal funcuons"'

C)onsequently' a Partnership created in one state

but rvhicl.r
domiciled
conclucts its main business in another state n1a' be considcred
rn tlle latlel state
RECOGNITION A}{D ENFORCEMENT
OF FOREIGN JUDGMENTS
5. Are the constitutional limitations on the Powers
of corporations
also applicable to PartnershiPs? 1. What are the reasons for the recognition and enforcement of
foreign iudgments bv the forum?
Yes, so that unless at least 609'i' of tl're capital of
a partnersirip is
tn the development
owned bv Fihpinos' tl-re partnersl-rip cannot engage The teasons are basicailr- thc sar:re as recognitton by thc forurn
public utilitres'
and exploitatron of our naturai resourccs' nor operate of tire proper foreign lawl and thc exceptions to the apphcauon of the
proper forergn law or comin'are also appltcable to foreign judgments.

rvhich is not owned

Netthet can a partnershtp 600''o of thc caprtal of 2. Distinguish enforcement from recognition of foreign iudgments.
agricultural lancls in the
b-v Filiputos o.q,rir. bv putcirase or otherrvrse
Philipprnes. Enforcement means that the plaintrff or petitloner wanrs the
(a)
court to out and make effective the foreign judgment.
p<-rsitrvelv carr\,'
rn the Philtppincs
Forergn partnerships may be mortgagees of land ',vhiie recognition rneans that the defendant or respondent is presenting
acquire said
for 5 vcars, rer"re*nbl. for another 5 )'tn"' but tirey callnot the foreign judgment merelv as a defense, on the basis of ru judicata.
iand rn a foreclosure proceeding (l{ep' Act No 133)'
(b) Enforcernent implies an act of soverergr)t\': rcc(,gnlu()n il)-
6. If a PhilipPine court appoints a receiver for a foreign Partnership volves merelv a senseof iustice (Perkin t'. Ilenpae/ C,onrolitktd hlintng(.0..
with respect
in the PhilipPines' does the receiver also act as such L-|981-82, May 28, 1951).
to assets of said partnership in its home state?
(c) Enforcement reguues a scpar:rtu acuon ()l procecdir,g brouglrt
Ntl.lxcntlsctlrc.ar.rtlrolttl'oItlrcrcceir,erison]r.wrdrintlreterrit<>rial preciselv fo make tirc fcrreign judgnrcr.rt cffccuvc: rcc<>gnition, berng a
l)lrrlrpPln('s, or co-cxtensive vitl-r the ir.rrisdiction
of tlre
boriDdarit,. rrl'tht' matter o[ defense, necds no ()r pr'occcriinu but imphes that an
^cti()n
court that irpPorr-rtctl lrirtr' action or proceeding has alrcadt' becn hled tire defcndant rvho is
^galnst
invokrng the frrreign iudgment.
 CONFLICT OF LAWS RECOGNITIONANDENFORCEMENT 153
CONFLICT OF LAWS
152 l{l;( (,(;Nt I l(lN ANI) llNt'()I{CFIMENT oF FORETGNTUDGMENTS
()t, troRt,t( ;N ll tl t(;MliN'l's
on a criminal! revenue, or administauve lnatter.
(tl) l,.rrtof ( (.il1(.il1 c?tnnot extst rvithout recognluor], v'htie recog-
nllt()r (l()(:' llol ll('( (l or tltrt's not tequlre etlforcement' (c) There must be no lack of iurisdicuon. no wanr of nouce. no
collusion. no clear mistake of larv or fact I Ruie 39, sec. 48. 1997 Rules on
l',xirlrr;rlt: of tecognition: An Americarl presents a forergn decree Civil Procedure).
oi clrr,,rt t :rs :r tltictrse in a case for btgarnv zgalnst him rn the
l)hih111rtrrt's. (d) The foreign iudgment lnust not conraveoe a sound and
established public po[cv of the forurn.
lixampleofenforcement:AFitipirrawhoi-radbeendir'orced
bv hcr alicn husband under Art' 26 of the Familv Code and who rvas (e) The judg'rnent must be ret.iudirata; i.e.. the judgment must bc
cle,lcd bv the iocal civil regrstrar a rnarriage license for hct to be able
to
final; dre foreign court must have iurisdicuon over the subject marter and
n-rarrv agaln, hles an actlon with the proper: court to cornpel
said official
the partres; the judgrne nt rnust be on the rnerits; and tllere was idennn' of
to issue to her a marriage license on thc basis of the divorce decree partres, subject lnatter, and cause of actron.
obtarned from.her l:v her alien husband'
5. $/hat exactly do the 1997 Rules of Civil Procedure provide on
3.Forwhatreasonorreasonsm^v^localcourtinthePhilippines the effects of foreign iudgments in the Philippines?
refus€ to recognize or enforce a foreign iudgment?
Sec. -18, Rule 39, 1997 Rules on Crvil Procedr.rrc provrdes:
(a) The requisite proof of the forergn judgment mav not have

becn prcsented. "Tl're effect of a iudgment or Final order of a tribunal

Tire tnanner of ptovlng a foreign iudgrnent is the oi a forergl countr\", having jurisdicuon to rendcr the
samc 2s proving a foretpp J211' (I{ule 1i?' sec' 25' Revised
judgment or final order, is as folkrv,s:
Rules of Court)' (a) In case of a judgn.rent <.rr tlnal ordcr upon a
speciiic thing, the iudgment or hnrl order is conclusive
(b) The foreiEn iudgment rlav conravene 2 recognized and upon the trtle to the tlring; and
cstablishecl policv in oul country. (b) In case of a judgrnent or Ftnal ordcr against a
An exampie is a foreign decree o[ drvorce obtarned
person, the judgment or final order is presumptivc
bv a l;iliptno from iris Fiirpino abroad; oI a foreign
"r"rfe an d'lhe ir
jrrclgrr.rent awardrng thc custodl o[ a babv to t]rc Filipino
:;:*::,:,:T':,LT. :"-:"* "'H,
:li"""
f irthcr'. not to thc Filipino motirer' judgmcnt or final r>rcler mar
In eithcr .n.", al-,.
be repcllcd bt' evidence of a waut <-l[ jurisdicriolr, \r'anl
'l'lrc irtlrrilrrtslr.irtton o[iusticc in the countn v.there the foreign
(t.)
or not beyond
oi notice to tire par6,, collusion, fraud. or clear nristak<
lrrrillnrcrrt ( lttll(' ll()lll ttt;tY lrt' shockrngly corrupt of larv or fact".
rt'1 I rr ,,tt-l t

6. \$[ihat are the differences between the effects of a final iudgment

rl,r't' l);tul.. srrllrlr.
11.
4.whar irfc tltc (.r,n(litir,trr .rf r..(luifr:mctrts bcfore a local court in
the PlrilipprlrrI ('lll ettftrrt'r ot tt't'ttgtrizt t firrcign iudgment?
75)
or ordCr under the above rule, and the cffects of such iudgment or
order under the former Sec. 50 of Rulc 39 of thc llevised Rules t,l'
Court, which the foregoing Rule in tlre 1997 Rulcs of Civil Procc'
dure amended?

(:r I lltllr ttrtt',t l" pirrol ol tlrc lirrcttl-t judgment'

'trlt'r1tt,rlt' (a) Under thc forrner Sec, 50 of Rule 39 of the ltevrscd Rules ol
(l,l Ilr, ;,t,l1,tlt,lll lllllnl ltt "ll;tt11'11 rrl t"ttttltt'tctal matl(:r' n()t
 t54 It'r t't.NllllrNANlrlN]l|Xr ]MFNt r oNt't tt I ([,I Aw\
(lt lr lll ll(,t{ ll rl il.Ml!N I E

(.(llill I'rt{ l,rtt lrtrllrltlr ltl tfl rtt4 (t i ,l lilrllrtil(il1 'rl ,r lrrt(.tptt ( Qlltl illroil
,r A
qn[' 'rj'"':?slw
', i. ,r i, l"
?l sl)('( rltr lltttr!'t rt,,r', rrltr,r,lt , lil'rlrlrtt rl r ililr lilrit\,( illxrtl llt(. ltllr. to tlr<.

tlltttt'. lr',rtlltt1, 11 tlrr rvlt,,lr r,r,,,rlrl, lrr,rvtrl<'<l lltr.lrrr

1, Irttr,ltttl!, itfrttttt,,t CABAIAIUAN CIIY
('1l1lt ( (,ult lr.rrl lrtttrrltr llIl| lo lrtr)tilrililr r' ,r,il(l lil(ll'ilrrttl

lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc,
ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itl
Penonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a
right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucnt
ude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[
jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defen-
dant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act.

@) The formcr Scc. 50 of Rr.rlc 39 of the Revised Rules of

Court covered only final judgments. Sec. 48, Rule 39, of the 1997 Rules
on Civil Procedure, includes final orders. Both, however, must comply
with the rules on hnahry of judgments or orders; i.e., the ruies of rer
.fad.tcata.

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